http://www.advoc.com/ Advoc News, latest 20 items Fri, 18 May 2012 08:22:11 +0000 en http://www.advoc.com/view-news/The+ADVOC+Quaterly+Gazette/ http://www.advoc.com/view-news/The+ADVOC+Quaterly+Gazette/ Wed, 16 May 2012 09:58:01 +0000 Now in it's 9th year!


This 60 hours of work publication is full of news and updates from member firms, Committees and Practice Groups. It also includes information on new members and a report on Brand Standardisation.
[...]]]> Now in it's 9th year!


This 60 hours of work publication is full of news and updates from member firms, Committees and Practice Groups. It also includes information on new members and a report on Brand Standardisation.
]]> http://www.advoc.com/view-news/Siqueira+Castro+'E2'80'93+Advogados+incorporates+a+whole+prestigious+IP+Team+in+S'C3'A3o+Paulo/ http://www.advoc.com/view-news/Siqueira+Castro+'E2'80'93+Advogados+incorporates+a+whole+prestigious+IP+Team+in+S'C3'A3o+Paulo/ Wed, 16 May 2012 09:55:13 +0000 Siqueira Castro – Advogados continues its growing strategy with a ground shaking move. The Firm just announced the incorporation of the whole IP team of the traditional São Paulo Firm  De Vivo, Whitaker, Castro  e Gonçalves Advogados. Márcio Costa de Menezes e Gonçalves, who until now was a “naming partner” of his former firm and headed its IP team, is the new head of the IP practice of Siqueira Castro – Advogados. Márcio Gon[...]]]> Siqueira Castro – Advogados continues its growing strategy with a ground shaking move. The Firm just announced the incorporation of the whole IP team of the traditional São Paulo Firm  De Vivo, Whitaker, Castro  e Gonçalves Advogados. Márcio Costa de Menezes e Gonçalves, who until now was a “naming partner” of his former firm and headed its IP team, is the new head of the IP practice of Siqueira Castro – Advogados. Márcio Gonçalves is coming to the São Paulo office with his entire team of lawyers (Eduardo Ribeiro Augusto, Pedro Zardo Júnior, Anderson Alexandria Lins, Laura Garkish Haimoffand Juliana Araújo Amorim Ikuno), as well as trainees and administrative staff.


 “We are very excited with Mr. Gonçalves’ and his competent team’s admission to our office. Without any doubt he is a big name in intellectual property in Brazil. We are taking an important step towards the consolidation of our full service operation in the IP area, which has become one of the major areas here at Siqueira Castro – Advogados in the last few years,” says Carlos Fernando Siqueira Castro, managing partner of the Firm.


Mr. Gonçalves is the chairman for Instituto do Capital Intelectual (ICI – Intellectual Capital Institute), assistant director in Foreign Relations and Trade for Centro das Indústrias do Estado de São Paulo (Ciesp – São Paulo State Industry Center), and was recently nominated by Análise Advocacia magazine as one of the most admired IP lawyers in Brazil. He is also a former Executive Secretary of the Brazilian’s National Council against Intellectual Property Piracy and Offence from the Ministry of Justice.
]]> http://www.advoc.com/view-news/Achour+Law+Firm+-+Project+Finance/ http://www.advoc.com/view-news/Achour+Law+Firm+-+Project+Finance/ Wed, 09 May 2012 17:18:51 +0000 Getting the Deal Through publication from our new member in Tunisia.

[...]]]> Getting the Deal Through publication from our new member in Tunisia.

]]> http://www.advoc.com/view-news/Siqueria+Castro+-++Brazil+Intends+to+Align+Tax+Evasion+Rules+with+OECD+Standards+/ http://www.advoc.com/view-news/Siqueria+Castro+-++Brazil+Intends+to+Align+Tax+Evasion+Rules+with+OECD+Standards+/ Thu, 03 May 2012 10:12:26 +0000  Brazil Intends to Align Tax Evasion Rules with OECD Standards 


Marcello Cimino
Daniel Villa Real 
Haroldo Almeida Filho


Offshore tax evasion has been an enemy of fiscal authorities worldwide. It is an illegal way of tax reduction, which results in the loss of a great amount of tax revenue annually. It can also be a very difficult crime to spot, mostly because of the many sophisticated schemes used to ach[...]]]>  Brazil Intends to Align Tax Evasion Rules with OECD Standards 


Marcello Cimino
Daniel Villa Real 
Haroldo Almeida Filho


Offshore tax evasion has been an enemy of fiscal authorities worldwide. It is an illegal way of tax reduction, which results in the loss of a great amount of tax revenue annually. It can also be a very difficult crime to spot, mostly because of the many sophisticated schemes used to achieve it and minimize the risk of detection, such as money laundering.


The sharing of information plays a key role in the fight to counter offshore tax evasion. It allows the tracking of certain income flows, therefore providing authorities with the means of piercing a veil of secrecy cast over the source of income and undeclared assets all around the world. Acquiring this sort of information, however, is not an easy task, as access to it can be limited in some jurisdictions through bank secrecy laws.


In order to provide a transparent environment and create a network of information between countries, the Organization for Economic Co-operation and Development – OECD promotes the celebration of agreements regarding the international exchange of tax information, as, for example, the Convention on Mutual Administrative Assistance in Tax Matters, an agreement that allows the penetration of bank secrecy.


Brazil demonstrated the intention of joining the global fight on offshore tax evasion by signing the referred Convention in November 2011, thus confirming the country’s commitment to abide by the internationally agreed standards for tax evasion.¹


When asked about the effects of the Convention, Celso Arruda França, the Head of Financial and Tax Division, Ministry of External Relations of Brazil (Itamaraty), said that this kind of exchange of information cannot be compared to any kind of breach of bank privacy or complete access to all sorts of bank information.²


It is of utmost importance to comment that Brazil, despite having signed the Convention on Mutual Administrative Assistance in Tax Matters, is not a member of the organization at this moment. This means that it does not follow all of the regulations established by OECD. As an example, Brazil has its own transfer pricing rules.


Furthermore, it is also relevant to note that, for the Convention to become valid within Brazil, it must be ratified first. For this purpose, the agreement shall be sent to the Brazilian Congress later this year. 


 


 ¹  “Tax evasion: Pressure to end tax evasion grows as the Global Forum publishes new reviews”. OECD.org. April 5, 2012. http://www.oecd.org/document/20/0,3746,en_21571361_44315115_50070740_1_1_1_1,00.html.

² Ennes, Juliana. “Brasil terá de se adequar a regras da OCDE de redução da evasão fiscal”. Valor Econômico.com.br. March 27, 2012. http://www.valor.com.br/brasil/2589946/brasil-tera-de-se-adequar-regras-da-ocde-de-reducao-da-evasao-fiscal. 


 


 
]]> http://www.advoc.com/view-news/Siqueira+Castro+-+Limits+on+the+use+of+a+Trademark'3A+Parallel+Import+of+Products+Bearing+Registered+Trademark+in+Brazil/ http://www.advoc.com/view-news/Siqueira+Castro+-+Limits+on+the+use+of+a+Trademark'3A+Parallel+Import+of+Products+Bearing+Registered+Trademark+in+Brazil/ Thu, 03 May 2012 10:04:15 +0000 LIMITS ON THE USE OF A TRADEMARK: PARALLEL IMPORT OF PRODUCTS BEARING REGISTERED TRADEMARK IN BRAZIL

Daniel Pitanga


Parallel import is an act of importing and reselling in a country a non-counterfeit product without the previous consent of the intellectual property owner.


Several reasons are linked to parallel import so as to justify legal action against unauthorized importers and resellers, namely: different v[...]]]> LIMITS ON THE USE OF A TRADEMARK: PARALLEL IMPORT OF PRODUCTS BEARING REGISTERED TRADEMARK IN BRAZIL

Daniel Pitanga


Parallel import is an act of importing and reselling in a country a non-counterfeit product without the previous consent of the intellectual property owner.


Several reasons are linked to parallel import so as to justify legal action against unauthorized importers and resellers, namely: different versions of products are launched for sale in different markets; different prices are set by companies in different countries without taking into account the commercial aspects and local costs to distribution and sales of the product in a specific market; parallel imported products compete unfairly with the regular/authorized products as many costs of commercialization of the products are not supported by unauthorized importer as example advertisement and SAC (customer services); among others.


On the other hand, parallel importers advocate that parallel import benefits consumers, empowering them to obtain competitively priced items and enhancing the free flow of information.


In spite of the arguments of parallel importers, damages supported by titleholder of the trademark are widely known as parallel importers do not contribute with the development of local markets and only intent to avoid distribution costs and, in fact, compete with the regular products placed in the internal market, disregarding rules of distribution and marketing established by the titleholder.


Concerning Brazilian Industrial Property Law (Law N° 9279 of 14th May 1996), the owner of a trademark may not prevent the free circulation of products placed on the internal market by himself or by another with his consent (article 132, I). In view of this provision, we may affirm that Brazil has adopted the principle of national exhaustion. It means that a trademark owner may prevent the importation and resale of a product in the market where he or she is the titleholder of the trademark and when the importation and resale of the products occurs without his or her consent.


Notwithstanding the requirements of item I of article 132, some decisions held by the Brazilian Court diverge from the necessary steps the titleholder should take to assure the right to prevent third party to import and resale a product bearing a registered trademark in Brazil.


Two sets of facts have been legitimated to support legal actions against parallel importers: (i) where there is recordal of a trademark license agreement before the Brazilian Industrial Property Office or (ii) when an exclusive distribution agreement has been signed between the trademark titleholder and a local distributor to place the products on the local market bearing registered trademark and respecting previous rules settled by the titleholder.


Legal enforcement of Parallel Import, however, is a sensitive issue in Brazil since the administrative seizure of parallel products has been a controversial theme to Customs Authorities. As the Federal Custom Decree n. º 6759 only provides that Customs Authorities may retain and seize counterfeit products as well as altered or imitated trademark and false indication of origin, some Customs Authorities, when they are dealing with parallel import, simply do not proceed with the notification of the titleholder as they understand that parallel import is not covered by mentioned Custom Decree.


Despite this, and until a consensus is not established by the local Customs, and in order to obtain rapidly the seizure of the parallel imported products, the allegation should be founded with the allegation of infringement of public health regulations and consumer issues beside intellectual property matters. 

]]> http://www.advoc.com/view-news/Siqueira+Castro++-+Conflict+of+jurisdiction+between+arbitration+chambers+and+the+silence+of+the+Arbitration+Law/ http://www.advoc.com/view-news/Siqueira+Castro++-+Conflict+of+jurisdiction+between+arbitration+chambers+and+the+silence+of+the+Arbitration+Law/ Thu, 03 May 2012 09:50:59 +0000 Conflict of jurisdiction between arbitration chambers and the silence of the Arbitration Law

The Superior Court through the judgment of the CC 113260/SP stood on the competent judicial body to judge jurisdiction conflict between arbitration chambers, since the arbitration law is silent regarding the competence to solve the conflict. 


It was put to the appreciation of the Superior Court positive conflict of jurisdiction, that is, two arbit[...]]]> Conflict of jurisdiction between arbitration chambers and the silence of the Arbitration Law

The Superior Court through the judgment of the CC 113260/SP stood on the competent judicial body to judge jurisdiction conflict between arbitration chambers, since the arbitration law is silent regarding the competence to solve the conflict. 


It was put to the appreciation of the Superior Court positive conflict of jurisdiction, that is, two arbitration chambers believe they have jurisdiction to issue an arbitration award, namely, Arbitration Chamber of Commerce of Sao Paulo - ACC - SP and Board of Mediation and Arbitration of Sao Paulo - BMA.


The rapporteur Minister Nancy Andrighi voted to recognize the jurisdiction of the Superior Court to appreciate positive jurisdiction conflict between two Arbitration Chambers located in the same county, considering that the headquarters of both does not indicate that the jurisdiction was given to them by the parties arises necessarily from their Local Court. Besides, none of the powers of state jurisdiction on the arbitral award shall, necessarily that the court will take the steps required by the Court of Arbitration shall be the place where the arbitration takes place, which was accompanied by the Minister Luiz Felipe Salomão.


It occurs that the eminent rapporteur’s vote became overcome, so the other Ministers voted in the sense of not knowing the conflict of jurisdiction in order to avoid the cascading effect and thus avoid all of the conflicts of jurisdiction, which are thousands and tend to increase, come to flow into the Superior Court.


Thus, the second section gave the understanding in the sense that the jurisdiction for trial of any possible conflict of jurisdiction between arbitration chambers is the first instance, because it involves an incident that does not fall within the jurisdiction of the Supreme Court, as the assumptions and scope of Article 105, I "d" of the Federal Constitution
The controversy that has not been analyzed yet is regarding the competence to the trial of conflict between arbitration chamber and the judiciary. 

]]> http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+April+2012/ http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+April+2012/ Wed, 02 May 2012 10:16:58 +0000 Ashfords' Cross Border Restructuring and Insolvency Bulletin

[...]]]> Ashfords' Cross Border Restructuring and Insolvency Bulletin

]]> http://www.advoc.com/view-news/LA+1st+Annual+Meeting+Informaion/ http://www.advoc.com/view-news/LA+1st+Annual+Meeting+Informaion/ Fri, 13 Apr 2012 10:00:00 +0000 Information regarding the Latin America meeting in Panama in July 2012.


They are requesting to receive this forms back by May 28th.


If you have any questions or would like anymore information please contact:


Ivette Martinez (imartinez@pmalawyers.com) or Gina Rios (grios@pmalawyers.com)

[...]]]> Information regarding the Latin America meeting in Panama in July 2012.


They are requesting to receive this forms back by May 28th.


If you have any questions or would like anymore information please contact:


Ivette Martinez (imartinez@pmalawyers.com) or Gina Rios (grios@pmalawyers.com)

]]> http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+March+2012/ http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+March+2012/ Fri, 30 Mar 2012 14:51:55 +0000 Ashfords' Cross Border Restructuring and Insolvency Bulletin

[...]]]> Ashfords' Cross Border Restructuring and Insolvency Bulletin

]]> http://www.advoc.com/view-news/Ashfords+lawyers+recognised+in+international+legal+industry+guide+following+merger/ http://www.advoc.com/view-news/Ashfords+lawyers+recognised+in+international+legal+industry+guide+following+merger/ Fri, 23 Mar 2012 15:44:42 +0000 Following the recent merger between law firms Ashfords LLP and London-based Rochman Landau, lawyers at the newly enlarged practice have received recognition in this year’s edition of Chambers Global, the international version of the valued reference bible for those seeking quality legal services.

[...]]]> Following the recent merger between law firms Ashfords LLP and London-based Rochman Landau, lawyers at the newly enlarged practice have received recognition in this year’s edition of Chambers Global, the international version of the valued reference bible for those seeking quality legal services.

]]> http://www.advoc.com/view-news/ADVOC+LA+-+First+Annual+Meeting/ http://www.advoc.com/view-news/ADVOC+LA+-+First+Annual+Meeting/ Wed, 07 Mar 2012 12:56:31 +0000 Patton Moreno & Asvat is pleased to be your host. The invitations will be sent shortly, but we want to give you preliminary information and a glimpse of the program, so you can book the ADVOC LA meeting in your calendar and make reservations for flights to Panama.


Please can you indicate your interest with Ivette Martinez (imartinez@pmalawyers.com) or Gina Rios (grios@pmalawyers.com) by 15th March.

[...]]]> Patton Moreno & Asvat is pleased to be your host. The invitations will be sent shortly, but we want to give you preliminary information and a glimpse of the program, so you can book the ADVOC LA meeting in your calendar and make reservations for flights to Panama.


Please can you indicate your interest with Ivette Martinez (imartinez@pmalawyers.com) or Gina Rios (grios@pmalawyers.com) by 15th March.

]]> http://www.advoc.com/view-news/Ashfords+LLP+and+Rochman+Landau+merge+/ http://www.advoc.com/view-news/Ashfords+LLP+and+Rochman+Landau+merge+/ Mon, 05 Mar 2012 13:42:52 +0000 On 1st March 2012 Ashfords and Rochman Landau merged under the name Ashfords LLP.


The enlarged practice will create a law firm with nearly 500 staff and annual fees of £30m.


For full information, please see the pdf below.

[...]]]> On 1st March 2012 Ashfords and Rochman Landau merged under the name Ashfords LLP.


The enlarged practice will create a law firm with nearly 500 staff and annual fees of £30m.


For full information, please see the pdf below.

]]> http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+February+2012/ http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+February+2012/ Tue, 28 Feb 2012 12:34:37 +0000 Welcome to the latest edition of our monthly Cross Border Restructuring and Insolvency Bulletin.

[...]]]> Welcome to the latest edition of our monthly Cross Border Restructuring and Insolvency Bulletin.

]]> http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+January+2012/ http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin+-+January+2012/ Fri, 27 Jan 2012 10:58:35 +0000 Welcome to the third edition of our monthly Cross Border Restructuring and Insolvency Bulletin.

[...]]]> Welcome to the third edition of our monthly Cross Border Restructuring and Insolvency Bulletin.

]]> http://www.advoc.com/view-news/The+Advoc+Quarterly+Update/ http://www.advoc.com/view-news/The+Advoc+Quarterly+Update/ Fri, 20 Jan 2012 09:30:53 +0000 Welcome to the first edition of the Advoc Quarterly Update!



During the Europe meeting in Istanbul in September 2011, it was decided that we would like to hear more regularly from each other about member firm successes and any other developments in the Advoc network. As a result, the Quarterly Update has been introduced so that you have the opportunity to let your Advoc colleagues know what your firm has been up to and hear updates from the Advoc Global Co[...]]]> Welcome to the first edition of the Advoc Quarterly Update!



During the Europe meeting in Istanbul in September 2011, it was decided that we would like to hear more regularly from each other about member firm successes and any other developments in the Advoc network. As a result, the Quarterly Update has been introduced so that you have the opportunity to let your Advoc colleagues know what your firm has been up to and hear updates from the Advoc Global Committees and other members.

]]> http://www.advoc.com/view-news/Ashfords+LLP+-+New+Build+Yacht+Accepted+with+Work+Outstanding/ http://www.advoc.com/view-news/Ashfords+LLP+-+New+Build+Yacht+Accepted+with+Work+Outstanding/ Fri, 20 Jan 2012 09:28:30 +0000 Riva Bella S.A. -v- Tamsen Yachts considers the implications of signing a Protocol of Delivery and Acceptance where there are defects with the vessel and the seller's obligations to meet the standards of a classification society nominated by the buyer.

[...]]]> Riva Bella S.A. -v- Tamsen Yachts considers the implications of signing a Protocol of Delivery and Acceptance where there are defects with the vessel and the seller's obligations to meet the standards of a classification society nominated by the buyer.

]]> http://www.advoc.com/view-news/CBP+Lawyers+-+How+do+law+firms+implement+technology'3F/ http://www.advoc.com/view-news/CBP+Lawyers+-+How+do+law+firms+implement+technology'3F/ Thu, 12 Jan 2012 09:16:52 +0000 This is an edited version of a presentation given by managing partner Dunstan de Souza at the 6th Annual Lawtech Summit & Awards 2011.

In a world that is constantly confronting us with new technological possibilities, new software and new gadgets, how does any organisation decide which technology to implement? When to jump in and when to hold back?

[...]]]> This is an edited version of a presentation given by managing partner Dunstan de Souza at the 6th Annual Lawtech Summit & Awards 2011.

In a world that is constantly confronting us with new technological possibilities, new software and new gadgets, how does any organisation decide which technology to implement? When to jump in and when to hold back?

]]> http://www.advoc.com/view-news/Ashfords'27+Marine+-+Broker+Arbitration+Service/ http://www.advoc.com/view-news/Ashfords'27+Marine+-+Broker+Arbitration+Service/ Thu, 29 Dec 2011 11:35:25 +0000 Contractual clauses can provide only a limited amount of protection in the event of disputes and complaints.

Arbitration provides a realistic and more expedient alternative to Court proceedings when disputes arise.
 

[...]]]> Contractual clauses can provide only a limited amount of protection in the event of disputes and complaints.

Arbitration provides a realistic and more expedient alternative to Court proceedings when disputes arise.
 

]]> http://www.advoc.com/view-news/Ashfords'27+Marine+Newsletter/ http://www.advoc.com/view-news/Ashfords'27+Marine+Newsletter/ Thu, 29 Dec 2011 10:28:26 +0000 Welcome to this edition of the Ashfords Marine Newsletter.


The Christmas and New year are busy periods for mariners and we trust that all our clients have had a good and safe Christmas break. We also wish you all a prosperous New Year.


In this addition of our Newsletter we look at jurisdiction issues, VAT and a commercial construction of contracts. We also update you on arbitration and look at funding large commercial claims on a Conditional[...]]]> Welcome to this edition of the Ashfords Marine Newsletter.


The Christmas and New year are busy periods for mariners and we trust that all our clients have had a good and safe Christmas break. We also wish you all a prosperous New Year.


In this addition of our Newsletter we look at jurisdiction issues, VAT and a commercial construction of contracts. We also update you on arbitration and look at funding large commercial claims on a Conditional Fee basis - particularly
important in these difficult economic times.


As a department this has been a busy period for us all and we continue to look at ways of improving our service to our clients from all our offices, particularly those in London, Exeter, Plymouth and Bristol.

]]> http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin/ http://www.advoc.com/view-news/Ashfords'27+Cross+Border+Restructuring+and+Insolvency+Bulletin/ Thu, 29 Dec 2011 09:55:15 +0000 Welcome to the second edition of our monthly Cross Border Restructuring and Insolvency Bulletin.

[...]]]> Welcome to the second edition of our monthly Cross Border Restructuring and Insolvency Bulletin.

]]> http://www.advoc.com/view-news/Ashfords'27+Marine+-+VAT+Sailaway+Scheme/ http://www.advoc.com/view-news/Ashfords'27+Marine+-+VAT+Sailaway+Scheme/ Tue, 20 Dec 2011 14:29:32 +0000 The Sailaway Scheme enables an (eligible) person to buy a boat from a supplier in the European Community (EC) without paying VAT, provided certain conditions are met. However, from 1 January 2012 a UK resident will no longer be able to benefit from the scheme.

[...]]]> The Sailaway Scheme enables an (eligible) person to buy a boat from a supplier in the European Community (EC) without paying VAT, provided certain conditions are met. However, from 1 January 2012 a UK resident will no longer be able to benefit from the scheme.

]]> http://www.advoc.com/view-news/Ashfords+Cross+Border+Restructuring+and+Insolvency+Bulletin/ http://www.advoc.com/view-news/Ashfords+Cross+Border+Restructuring+and+Insolvency+Bulletin/ Thu, 08 Dec 2011 15:30:16 +0000 Welcome to the first edition of our Cross Border Restructuring and Insolvency Bulletin which will be published monthly.

[...]]]> Welcome to the first edition of our Cross Border Restructuring and Insolvency Bulletin which will be published monthly.

]]> http://www.advoc.com/view-news/JTJB+-+September+Newsletter+2011/ http://www.advoc.com/view-news/JTJB+-+September+Newsletter+2011/ Wed, 07 Dec 2011 10:17:21 +0000 The contents include:

•    Article - Director’s right to inspect the company’s accounts and other documents under section 199(3) of the Singapore Companies Act.

•    Notable Cases handled by JTJB - JTJB acted in two significant shipping cases that went to the Singapore Court of Appeal this year.

•    Lagoon View Privatisation Exercise - JTJB represented Lagoon Vi[...]]]> The contents include:

•    Article - Director’s right to inspect the company’s accounts and other documents under section 199(3) of the Singapore Companies Act.

•    Notable Cases handled by JTJB - JTJB acted in two significant shipping cases that went to the Singapore Court of Appeal this year.

•    Lagoon View Privatisation Exercise - JTJB represented Lagoon View Owners’ Association in a privatization exercise.

•    JTJB supports the Olam Cup - JTJB was the Official Legal Services Provider to a cricket tournament that featured top international stars.

•    New Additions - JTJB welcomes its newest addition to the JTJB Team.

•    Shipyard Seminar - JTJB participated in a seminar specially designed for shipyards.
 

]]> http://www.advoc.com/view-news/Siqueira+Castro+Advogados+-++Brazilian+Legal+Report/ http://www.advoc.com/view-news/Siqueira+Castro+Advogados+-++Brazilian+Legal+Report/ Tue, 29 Nov 2011 09:28:39 +0000 Brazilian Legal Report. 3rd November 2011

[...]]]> Brazilian Legal Report. 3rd November 2011

]]> http://www.advoc.com/view-news/Norman+Waterhouse+welcomes+Anna+Hsiao+to+its+migration+practice/ http://www.advoc.com/view-news/Norman+Waterhouse+welcomes+Anna+Hsiao+to+its+migration+practice/ Fri, 25 Nov 2011 16:47:49 +0000 Norman Waterhouse has a long history of working with overseas clients, particularly investors from China, providing to them a range of services associated with migration, commercial and property development matters.

[...]]]> Norman Waterhouse has a long history of working with overseas clients, particularly investors from China, providing to them a range of services associated with migration, commercial and property development matters.

]]> http://www.advoc.com/view-news/VANDENBULKE'E2'80'99s+Investment+Funds+Newsletter+/ http://www.advoc.com/view-news/VANDENBULKE'E2'80'99s+Investment+Funds+Newsletter+/ Wed, 09 Nov 2011 10:22:27 +0000 In 2013, a new era will begin on the alternative investment market with the implementation of the AIFMDin all EU-Member States legal frameworks. In anticipation of the forthcoming changes and in order to adapt the most successful investment vehicle’s legal and regulatory environment to its future objectives, a draft law amending the current law on specialized investment fund (the “SIF”) was submitted to the Luxembourg parliament on 12 August 2011. We summarize the most[...]]]> In 2013, a new era will begin on the alternative investment market with the implementation of the AIFMDin all EU-Member States legal frameworks. In anticipation of the forthcoming changes and in order to adapt the most successful investment vehicle’s legal and regulatory environment to its future objectives, a draft law amending the current law on specialized investment fund (the “SIF”) was submitted to the Luxembourg parliament on 12 August 2011. We summarize the most interesting points of the draft law in our newsletter.

]]> http://www.advoc.com/view-news/Ashfords'27+Construction+Newsletter+-+2011/ http://www.advoc.com/view-news/Ashfords'27+Construction+Newsletter+-+2011/ Wed, 02 Nov 2011 16:20:56 +0000 Buildlaw - Construction Newsletter - Summer/Autumn 2011
[...]]]> Buildlaw - Construction Newsletter - Summer/Autumn 2011
]]> http://www.advoc.com/view-news/BSJP+-+Updates+concerning+the+Polish+market/ http://www.advoc.com/view-news/BSJP+-+Updates+concerning+the+Polish+market/ Mon, 24 Oct 2011 14:23:38 +0000 Investing in Poland - Guidelines including Important Legal Provisions


The Investing in Poland Guide  gives you a useful overview of the most important legal criteria where investors can perform their activities. This solid substantive groundwork will accelerate your success in the rapidly developing Polish economy.


Polish IT Market Report


The brochure outlines the status of the foreign companies currently working [...]]]> Investing in Poland - Guidelines including Important Legal Provisions


The Investing in Poland Guide  gives you a useful overview of the most important legal criteria where investors can perform their activities. This solid substantive groundwork will accelerate your success in the rapidly developing Polish economy.


Polish IT Market Report


The brochure outlines the status of the foreign companies currently working in the IT sector in Poland, as well as other organisations which are considering or intending setting up  a business in this sector in Poland. There is a particular emphasis on the Polish IT sector regulations. The first part of the publication discusses the key economic issues. Further on the guide presents the important legal requirements which have practical impact on this business sector.


Real Estate in Poland


The Real Estate Investment Guide  gives you a useful overview of  Polish real estate law, secured transaction law and construction law. This solid substantive groundwork will accelerate your success in the rapidly developing Polish economy.


Public-private partnership in Poland


Public-Private Partnership in Poland. This guide contains a short description of the Polish legal regulations on Public-Private Partnership and will give you an insight into the opportunities in this field in Poland.


Renewable Energy in Poland


The guide  will provide you with an overview of the renewable energy regulations in Poland, including all the latest amendments in the Polish Energy Act. Implementation of these amendments resulted in significant changes in the Polish energy sector


If you would like to receive the full version of the brochure, please contact our office at info@bsjp.pl

]]> http://www.advoc.com/view-news/Ashfords'27+Marine+Newsletter+-+Summer+2011/ http://www.advoc.com/view-news/Ashfords'27+Marine+Newsletter+-+Summer+2011/ Fri, 12 Aug 2011 15:21:11 +0000 [...]]]> ]]> http://www.advoc.com/view-news/News+from+BSJP/ http://www.advoc.com/view-news/News+from+BSJP/ Fri, 01 Jul 2011 15:03:26 +0000 BSJP I Taylor Wessing rises in the leading Law Firms Ranking


We are pleased to announce further promotion of our office ranked in the leading law firms ranking, published on April 15 in Rzeczpospolita. The ranking presents the biggest and best companies involved in legal services.

BSJP in alliance with Taylor Wessing has been ranked nineteenth, which means a rise of three places in comparison to last year. The ranking in the category of largest la[...]]]> BSJP I Taylor Wessing rises in the leading Law Firms Ranking


We are pleased to announce further promotion of our office ranked in the leading law firms ranking, published on April 15 in Rzeczpospolita. The ranking presents the biggest and best companies involved in legal services.

BSJP in alliance with Taylor Wessing has been ranked nineteenth, which means a rise of three places in comparison to last year. The ranking in the category of largest law firms considers the number of employed barristers and solicitors. It should be noted that this ranking did not account for our three new partners, who joined our office along with teams of lawyers at the beginning of April.


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Agnieszka Deeg in the international Chambers & Partners ranking


We are pleased to announce that Agnieszka Deeg, partner at BSJP in alliance with Taylor Wessing, has been included in the prestigious Chambers & Partners ranking.


Agnieszka Deeg recently joined the firm BSJP Brockhuis Schnell Jurczak Prusak after leaving CMS Cameron McKenna. Clients agree that she has "great expertise and understanding of the pharmaceutical industry. She is exceptionally responsive and commercially aware."


Chambers:           http://www.chambersandpartners.com/UK/Editorial/41170#per_744178


Agnieszka Deeg:  http://bsjp.pl/en/lawyers/agnieszka_deeg,364/


 


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Three new partners joined BSJP in alliance with Taylor Wessing


For further information click link below
http://www.advoc.com/uploads/944e0dd3aebf74c8164420373.pdf


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Life Sciences & Healthcare


Click to download PDF 
http://www.advoc.com/uploads/944e0dd3aebf74c8164420371.pdf


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Public tender procedure in the process of prospection, exploration and production of shale gas


For further information click link below
http://www.advoc.com/uploads/944e0dd3aebf74c8164420372.pdf

]]> http://www.advoc.com/view-news/Colin+Biggers+'26+Paisley+-+Construction+Newsletter/ http://www.advoc.com/view-news/Colin+Biggers+'26+Paisley+-+Construction+Newsletter/ Fri, 03 Jun 2011 10:00:49 +0000 [...]]]> ]]> http://www.advoc.com/view-news/Asian+Legal+Trends/ http://www.advoc.com/view-news/Asian+Legal+Trends/ Mon, 16 May 2011 12:37:28 +0000 Members of Advoc-Asia have prepared short briefing notes giving a snapshot of developments in their own countries up to May 2011. 


We hope you will find the notes interesting.  If you need more information about any of the topics, please contact the Advoc member whose name appears at the bottom of the attached note.


The Asia chapter plans to update the notes annually. 

[...]]]> Members of Advoc-Asia have prepared short briefing notes giving a snapshot of developments in their own countries up to May 2011. 


We hope you will find the notes interesting.  If you need more information about any of the topics, please contact the Advoc member whose name appears at the bottom of the attached note.


The Asia chapter plans to update the notes annually. 

]]> http://www.advoc.com/view-news/Doing+Business+in+Latin+America/ http://www.advoc.com/view-news/Doing+Business+in+Latin+America/ Fri, 08 Apr 2011 16:29:53 +0000 This publication intends to provide a general overview of the legal environment for business and foreign investment in the different Latin American countries where Advoc is established.

[...]]]> This publication intends to provide a general overview of the legal environment for business and foreign investment in the different Latin American countries where Advoc is established.

]]> http://www.advoc.com/view-news/Bribery+Act+2010+to+be+implemented+on+1+July+2011+-+Ashfords+LLP'2C+England/ http://www.advoc.com/view-news/Bribery+Act+2010+to+be+implemented+on+1+July+2011+-+Ashfords+LLP'2C+England/ Fri, 08 Apr 2011 16:25:29 +0000 More than a year after it received Royal Assent on 8 April 2010 - and following weeks of speculation as to when the unimplemented provisions of the Bribery Act 2010 (the "Act") will come into force - the Ministry of Justice ("MoJ") announced yesterday that the remainder of the Act will have effect from 1 July 2011.

Following extensive consultation, the nervously awaited guidance required to be provided by the Secretary of State under section 9 of the Act[...]]]> More than a year after it received Royal Assent on 8 April 2010 - and following weeks of speculation as to when the unimplemented provisions of the Bribery Act 2010 (the "Act") will come into force - the Ministry of Justice ("MoJ") announced yesterday that the remainder of the Act will have effect from 1 July 2011.

Following extensive consultation, the nervously awaited guidance required to be provided by the Secretary of State under section 9 of the Act was finally published yesterday.  The "Guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing" (the "Guidance") is intended to inform businesses of the safeguards they will need to put into place to avoid falling foul of the provisions of the Act.  The MoJ has kept its promise that following publication of the Guidance there will be a "three-month notice period" before the Act comes into force, in order to give businesses time to ensure compliance.

Businesses are reminded that a breach of the Act may result in a maximum prison sentence of 10 years.  Offences include a person committing bribery, receiving bribes and failure of a business to prevent bribery being carried out by an "associated person" of the business, as well as a separate offence of bribery of a foreign public official.

The Guidance

As well as providing general information on the policy shaping the Act, the Guidance focuses on the new offence created by section 7 of the Act - committed where businesses fail to prevent persons associated with them from committing bribery on their behalf.  In order to encourage businesses to be proactive in preventing such bribery, a complete defence is provided where the business can show that it put in place procedures to prevent persons associated with it from bribing.  The Guidance sets out the key principles that businesses should take into account when implementing policies to avoid the commission of an offence (the "Six Principles") and it is intended that this will ease some of the concern and confusion felt by businesses in relation to this offence.  It is likely that, in the event a business finds itself having to establish a defence, being able to demonstrate that the principles within the Guidance were followed by the business will assist greatly.  As always, however, the Government makes it clear that the Guidance is prescriptive only and successful defence of a prosecution will ultimately depend on the circumstances.

The Six Principles

The Six Principles are, in our view, somewhat overlapping and focus on three main overarching principles:



implementing procedures that are proportionate to the level of risks facing the business, including risk assessments and due diligence;

ensuring adequate communication within the business of the anti-bribery policies stemming from a strong commitment at the top level of the business to preventing bribery; and

ongoing monitoring and review of the processes in place.  Detailed commentary on each of the principles is provided in the Guidance.  


In order to provide further direction as to the application of the Six Principles, 11 case studies illustrate the application in certain situations for different size businesses with varying degrees of usefulness.

General Points

The Guidance is clear that the intention is not to require businesses to take disproportionate actions in relation to compliance with the Act and that prosecution will be subject to a public interest test.  However, the offences are in place and the MoJ is not clear that compliance with the provisions of the Guidance will prevent prosecution.

The Guidance provides useful clarification of the scope of the offence under section 7, plainly demonstrating that the concept of persons associated with a business is intended to be broad.  For example, it will include contractors who perform services for or on behalf of a business, and may infer liability on a holding company to the act of a subsidiary company if there was an intention to obtain a business advantage for the whole group.

Usefully, the Guidance also clarifies that hospitality will not be prohibited, although the circumstances will be more tightly controlled. Bona fide hospitality and business expenditure that is reasonable and proportionate and which seeks to improve the image of the business, better to present products and services or to establish cordial relations will be permitted.  Kenneth Clarke reassures businesses in his foreword to the Guidance that "no one wants to stop firms getting to know their clients by taking them to events like Wimbledon or the Grand Prix".

The Director of Public Prosecutions and the Director of the Serious Fraud Office have set out their approach to deciding whether to bring a prosecution under the Act in joint guidance for prosecutors.  This includes further information on the application of the Act.  We must now wait and see whether the Government's emphasis on proportionality and the workability of the requirements of the Act is remembered when the first prosecutions occur, and whether the Government's aim of not "unduly burdening the vast majority of decent law-abiding firms" has been achieved.


For further information contact Ashfords LLP at www.ashfords.co.uk

]]> http://www.advoc.com/view-news/10+top+tips+to+consider+when+thinking+of+licensing+technology/ http://www.advoc.com/view-news/10+top+tips+to+consider+when+thinking+of+licensing+technology/ Fri, 08 Apr 2011 16:23:19 +0000 There are many issues to consider when you are thinking of either taking a licence for a third party's technology or granting a licence of your technology to a third party.

Our ten top tips to consider are as follows:



What is being licensed?  Be precise.  Is it a patent, know-how, other IP rights, a combination of all or some of the foregoing?

Is it worth paying anything for what is being licensed?  F[...]]]> There are many issues to consider when you are thinking of either taking a licence for a third party's technology or granting a licence of your technology to a third party.

Our ten top tips to consider are as follows:



What is being licensed?  Be precise.  Is it a patent, know-how, other IP rights, a combination of all or some of the foregoing?

Is it worth paying anything for what is being licensed?  For example, if it is a patent being licensed, is it valid?  How easy would it be to invent around it and thus avoid infringing the patent? 

What type of licence?  Is it to be an exclusive, non-exclusive or sole licence - the answer will often affect the price paid/the royalties payable.

Field of Use and Territory Will there be a limitation on the licensee, preventing them from exploiting the licensed technology outside a defined field of use/application/territory?

Price How much is to be paid for the licence, and when is this payable? Will there be an upfront payment and/or ongoing royalty payments? If the latter, how will they be calculated?  Will there be any minimum royalty payments?

Warranties and indemnities Are you getting or giving any? For example, that the use of the licensed technology will not infringe anyone else's legal rights, such as their IP rights.  If not, it may be sensible to carry out "freedom to operate" clearance searches, to make sure that the use of the licensed technology will not infringe anyone else's legal rights.

Product Liability If the licensed technology will be used to make commercial products to be sold to others, who will be responsible for product liability claims?  Is the licensor to have the right to exercise quality control over the finished products?   

Term  What is the term of the licence and when and how can it be terminated early?  For example, can it be terminated for no-fault, on a breach occurring, on an insolvency event arising, on a change of control of one of the parties, if the IP being licensed ceases to have any legal effect, etc.?  What will and should happen on termination?

Infringement What will happen if someone else infringes the licensed technology?  Will the licensor be contractually obliged to take steps to prevent the infringement?  Can the licensee take legal action? Is the licensee to be contractually obliged to assist the licensor to stop third party infringers? Who will pay for any such actions?  Who will keep any damages that are recovered from the infringer?  

Competition law implications Are there any?  For example, is the licence going to be between competitors?  What is the market share of the parties?  Will there be price fixing, or any allocation of territorial or other markets and/or customers between the parties? Will the licensee be obliged not to challenge the licensor's IP rights?


No list can ever be conclusive, but the one given above is a good starting point for the licence negotiations.


For further information contact Ashfords LLP at www.ashfords.co.uk
]]> http://www.advoc.com/view-news/Investment+Fund+News+from+VANDENBULKE'2C+Luxembourg/ http://www.advoc.com/view-news/Investment+Fund+News+from+VANDENBULKE'2C+Luxembourg/ Fri, 08 Apr 2011 16:20:34 +0000 VANDENBULKE, has been elected by International Corporate Magazine as the “Boutique Tax Law Firm of the Year 2010 in Luxembourg”. We are proud of this award which confirms the growing recognition and the reputation of excellence of VANDENBULKE in the Luxembourg legal market.


Click here to view the Newsletter

[...]]]> VANDENBULKE, has been elected by International Corporate Magazine as the “Boutique Tax Law Firm of the Year 2010 in Luxembourg”. We are proud of this award which confirms the growing recognition and the reputation of excellence of VANDENBULKE in the Luxembourg legal market.


Click here to view the Newsletter

]]> http://www.advoc.com/view-news/ICT+Update+from+Maddocks'2C+Australia/ http://www.advoc.com/view-news/ICT+Update+from+Maddocks'2C+Australia/ Mon, 21 Mar 2011 13:50:30 +0000 Governance

Q&A: Vinton Cerf on the Internet's Future


Vinton Cerf is widely recognized as one of the founding fathers of the Internet and currently holds the title of "chief Internet evangelist" at search giant Google Inc.Last month, Maddocks hosted an evening where Mr Cerf. spoke on the future of digital communications. In Hong Kong for an industry conference, Mr. Cerf spoke with The Wall Street Journal about trends in the[...]]]> Governance

Q&A: Vinton Cerf on the Internet's Future


Vinton Cerf is widely recognized as one of the founding fathers of the Internet and currently holds the title of "chief Internet evangelist" at search giant Google Inc.Last month, Maddocks hosted an evening where Mr Cerf. spoke on the future of digital communications. In Hong Kong for an industry conference, Mr. Cerf spoke with The Wall Street Journal about trends in the Internet space, the implications of the temporary shut down of the Internet in Egypt earlier this month and censorship in China.  Full Story


United Nations undermines Internet Governance Forum


The first preparatory meeting for the 2011 Internet Governance Forum has ended with a significant degree of uncertainty thanks to ongoing bureaucratic delays. Full Story
 


Domain Names

June 2011 ICANN Meeting to be Held in Singapore


ICANN is pleased to announce that ICANN's 19-24 June 2011 Public Meeting will be held in Singapore. Full Story


NTIA Raises Possibility of Big Changes in IANA function by Milton Mueller


The U.S. Commerce Department has issued a Request for Comments (RFC) on the renewal of the IANA contract. As the notice itself says, this is "the first time NTIA has undertaken a comprehensive review of the IANA functions contract since the award of the first contract in 2000." Full Stor


NetFleet breaches Code of Practice


auDA has found that NetFleet breached the Code of Practice by sending unsolicited emails to approximately 1,200 registrants. Full Story


Victorian Supreme Court places Australian Style Pty Ltd in liquidation


On 7 February 2011, the Supreme Court of Victoria ordered Australian Style Pty Ltd be placed in liquidation and appointed John Lindholm of insolvency firm Ferrier Hodgson as liquidator. The decision follows a winding up application lodged by .au Domain Administration (auDA) on 29 November 2010. Full Stor


The auDA Foundation - One of a Kind


There are many types of foundations in Australia; private foundations established by individuals, family foundations, government initiated foundations, community foundations and corporate foundations that receive income or grants from profit making companies. Full Story


On New gTLDs and the Timeline


ICANN recently published materials describing discussions, public comment and general progress on the New gTLD program. One area that has attracted particular interest is the timeline for moving forward. Full Story


Importance of Domain Names Will Continue Despite Social Networking Options


Domain names will continue to be important in a company's branding and image said Sedo's Tim Schumacher on day one of the Domain Pulse conference in Vienna. However there are alternative means of promoting a company or brand such as social networking services, said Sabine Hoffman from marketing company ambuzzador, that can be complementary to using a domain name.


Full Story


Available Pool of Unallocated IPv4 Internet Addresses Now Completely Emptied: The Future Rests with IPv6


A critical point in the history of the Internet was reached today with the allocation of the last remaining IPv4 (Internet Protocol version 4) Internet addresses from a central pool. It means the future expansion of the Internet is now dependant on the successful global deployment of the next generation of Internet protocol, called IPv6. Full Story


Sealing the deal for $100,000


THE group buying business continues to grow with Zoupon announcing the company has paid $100,000 for the domain name deals.com.au. Full Story


 


Internet Use

Google versus the content-spammers


For some time, Google has been threatening to make life harder for so-called "content farms", which produce mountains of low-grade articles stuffed with popular keywords, to ensure that they appear high up in search results. Google users grumble at having to wade through reams of such articles to find ones that are really informative. Now the search giant has revealed that it has tweaked the secret formula that it uses to rank web pages in ways that it hopes will make life harder for the purveyors of such spam. Full Story


Home Internet May Get Even Faster in South Korea


South Koreaalready claims the world's fastest Internet connections - the fastest globally by far - but that is hardly good enough for the government here. Full Stor


Asia's Digital Dilemma: While many Asian firms understand the importance of embracing the digital age, a deep-seated cultural wariness prevails


Faced with a massive fridge recall in Australia last year, South Korea's LG Electronics did something bold: It tweeted about it. Full Story


Web acts as virtual crisis centre for Christchurch quake victims


Christchurchearthquake victims are using the web as a virtual crisis centre, harnessing it for everything from finding and offering accommodation to locating missing people. Full Story


Future of online content is not free, says strategist


Consumers will pay for online content they previously got for free, including news and recorded music, predicts business strategist and author Saul Berman, but the transaction will be a lot more complicated than it used to be. Full Story


Health Care Is High Among Web Searches


Four in five Internet users have searched the Web for health care information, most often checking on specific diseases and treatments, a Pew Internet Project survey reported on Tuesday. Full Story


Australian dollar behind rise in online spending, central bank suggests [AAP]


Online spending for overseas goods is rising in Australia, but the level is still relatively low, Australia's central bank said today. Full Story


Internet advertising hits $2.2bn, and strong growth predicted


Internet advertising looks almost certain to have broken through $2.2 billion last year, with strong growth forecast in the year ahead despite a likely slow start due to the natural disasters in Queensland. Full Story


Online study kills uni life


The push towards web-based learning at universities has halved student attendance rates in some courses and dramatically increased working hours for lecturers, a survey of academics by The Sun-Herald has found. Full Story


Groupon launches in Australia as Stardeals


In the midst of an ongoing trademark stoush with Aussie coupon website Scoopon, Groupon has launched in Australia under the name Stardeals.... The Australian Domain Name Administrator (auDA) said in January that the matter was outside of its jurisdiction because Scoopon had registered both the "Groupon" business name in Australia as well as the local domain name. Full Story


 


New Technologies

Australian homes set for IT network revolution: ACMA


Australian home owners are increasingly becoming IT managers as household networks become ever more complex, according to the Australian Communications and Media Authority (ACMA). Full Story


 


Intellectual Property

World watches Australia's tobacco fight


The world is watching as Australia goes into battle with big tobacco over making cigarette packets plainer, uglier, and uncool. Full Story


USbusiness reboots copyright law


The U.S. Chamber of Commerce said its top priority on intellectual property issues is pushing Congress to pass a law that tackles online copyright infringement and trade in counterfeit goods, setting up a potential clash between business interests and free-speech advocates. Full Story


Obama Creates IP Enforcement Committees


President Obama late Tuesday issued an executive order calling for the creation of two intellectual property enforcement advisory committees aimed at enhancing the efforts of the U.S. government to protect U.S. intellectual property. Full Story


Report Touts U.S. Efforts To Protect Intellectual Property


White House officials released the first report on intellectual property enforcement since the Joint Strategic Plan was enacted last year. Full Story


Counterfeit Congress Gives Nod To Developing Country Concerns


Sustainable development made what some described as a welcome intrusion at the global congress on counterfeiting and piracy during a dedicated session on Wednesday, with discussions on how to conduct enforcement efforts while taking into account developing country specificities. Full Story


Online TV & Music


iiNet wins another round in court battle with Hollywood


iiNet yesterday celebrated another major victory in its landmark online piracy battle with Hollywood, but safe legal ground is still far off for internet providers, copyright experts say. Full Story


AFACT online copyright appeal against iiNet dismissed


Australian ISPs celebrated today after the Federal Court found for a second time that they could not be held liable for internet piracy by their customers. Full Story


EFA urges skepticism on copyright claims


Electronic Frontiers Australia (EFA) today urged skepticism about claims that piracy is costing thousands of jobs in Australia. Full Story


 


Mobile/Wireless

Smartphones clogging mobile networks - ITU chief


Smartphones are causing heavy congestion on the world's mobile networks and governments need to act quickly to support wireless broadband growth, the head of the International Telecommunications Union warned. Full Story


Is this the start of a Mac-lash?


That Apple makes money from apps is not news. But it's the way it works that has hacked off fanboys and disenchanted developers. Ian Burrell examines how loyalty has been tested to the limit ... "Apple has brilliantly managed to sew us up in this Apple world, but in some ways they are the most rigid authoritarian leader brand. It's our way or the highway with Apple." Full Story


Telstra takes steps against bandwidth hogs


Telstra will use quality-of-service technology on its planned LTE wireless network to prevent heavy bandwidth users from clogging the network. Full Story


 


Online Crime, Security & Legal

When the Internet Nearly Fractured, And How It Could Happen Again


When the entire country of Egypt was forced offline by its government last month, it served as a global wake-up call that the Internet is a more fragile medium than we imagine it to be. What happened in Egypt was particularly striking, but other, subtler tests of the Internet's resilience abound. Full Story


UKcyber crime costs £27bn a year - government report


Cyber crime costs the UK economy £27bn a year, the government has said. The figures, published for the first time, are a mid-range estimate and the real cost could be much higher. Full Story


COAG sub-committee praises disaster tech


The National Emergency Management Committee has issued an update on the National Strategy on Disaster Resilience, which has praised the use of technology in disaster scenarios, following the Council of Australian Governments (COAG) meeting in Canberra yesterday. Full Story


Unprotected home computers vulnerable to hijack


Protect your home computer or you could unwittingly help to launch a cyber attack, experts are warning. They say the rise in such attacks risks undermining critical national infrastructure and the future of the global economy. Full Story


Vultures circle Christchurch - an email scam warning


The Ministry of Consumer Affairs has reported an email scam involving the Christchurch earthquake relief effort. Full Story


 

Censorship

Dictator-Proofing the Internet


When authorities in Egypt shut down Internet connections during last week's uprising, hackers around the world started scrambling to create a work-around. Before they could succeed, the blackout was lifted. But now people are worried that similar shutdowns might occur in countries like Jordan, Syria, and Yemen-and so hackers are working to set up alternative networks in those countries, just in case. Full Story


 


 


Government & Public Policy

WIPO Director General Addresses the Future of Copyright [news release]


WIPO Director General Francis Gurry said that copyright needs to evolve to current technological realities or risk becoming irrelevant. Speaking at a conference hosted by Australia's Faculty of Law of the Queensland University of Technology (QUT) on the future of copyright, Mr. Gurry said there is no "single magical answer" to the development of a successful policy response to the challenges facing copyright in the digital age, but a combination of "law, infrastructure, cultural change, institutional collaboration and better business models." Full Story


Attorney-General signals shift in safe harbour provisions


The Federal Attorney-General, Robert McClelland, has signalled moves to expand provisions harbouring internet service and online content providers from litigation by copyright holders. Full Story


 


Telecommunications

Wireless camp uninformed about cable, says NBN boss


The man responsible for rolling out the national broadband network, Mike Quigley, has bluntly rejected opposition claims the $36 billion project is threatened by Telstra's plans for a super-fast wireless network. Full Story


Pipe dreams of a faster future


Stephen Conroy is not one for bad dreams. Bad dreams come to people who doubt, who repress their anxiety. It's hard to imagine the federal Communications Minister repressing anything - he's always in the moment. Full Story


Opinion: NBN vs 4G: the contest is already over by Rod Tucker


When I was growing up in the 1950s and 1960s, the coolest radio stations in town had DJs with fake American accents, and the best new products being advertised were always American or American-style. We looked to America as the home of everything new and exciting. We were envious as of the Americans as they were supposedly smarter than us and could do things better than us. Full Story
]]> http://www.advoc.com/view-news/Doing+Business+in+the+UK/ http://www.advoc.com/view-news/Doing+Business+in+the+UK/ Mon, 07 Feb 2011 18:15:23 +0000 A PDF guide to doing business in the UK

[...]]]> A PDF guide to doing business in the UK

]]> http://www.advoc.com/view-news/The+ASA'27s+new+remit+to+regulate+marketing+messages+on+websites++/ http://www.advoc.com/view-news/The+ASA'27s+new+remit+to+regulate+marketing+messages+on+websites++/ Fri, 04 Feb 2011 15:25:41 +0000 The Advertising Standards Authority ("ASA") is the UK's independent regulator of advertising across all media, including via television, print, the internet and radio.

Pursuant to the various self-regulating advertising codes that it enforces, it looks to ensure that all advertisements are, inter alia, legal, decent, honest and truthful.


From 1 March 2011, the ASA will have new powers to regulate (via the CAP code) the marketing commun[...]]]> The Advertising Standards Authority ("ASA") is the UK's independent regulator of advertising across all media, including via television, print, the internet and radio.

Pursuant to the various self-regulating advertising codes that it enforces, it looks to ensure that all advertisements are, inter alia, legal, decent, honest and truthful.


From 1 March 2011, the ASA will have new powers to regulate (via the CAP code) the marketing communications of businesses operating from the UK on their own websites and on other non-paid-for space online under their control (e.g. messages they post on Facebook or Twitter or other social networking websites).  Its powers will extend to cover all business sectors and all businesses, regardless of size, and all of the rules in the current CAP code will apply (e.g. the obligation to make sure that all marketing messages are truthful and not misleading).

In basic terms, if, as a business, you post an advertisement or marketing communication on your website or on, for example, Facebook or Twitter, that is directly connected with the supply or transfer of goods or services (i.e. if its intention is to assist you to promote and sell a product or service that you offer), or opportunities or gifts, or that which consists of a direct solicitation of a donation as part of your own fund-raising activities, then the communication will have to comply with the CAP code.

The ASA has announced that once it has these new powers it will be looking, in particular, to eradicate misleading and untrue marketing and advertising communications made on the websites of businesses operating from the UK.

At present, if a marketing communication is in breach of the CAP Code, the marketer responsible is told by the ASA to amend or withdraw it, and most do. If they do not, sanctions can be applied.  These include adverse publicity arising from an ASA adjudication, pre-publication vetting by the CAP Copy Advice team and the withdrawal of trading privileges, including media space. On the very rare occasions that compliance with the CAP Code cannot be secured, the ASA may, depending on the nature of the breach, refer a non-broadcast marketer to the Office of Fair Trading for action under the Consumer Protection from Unfair Trading Regulations 2008 or the Business Protection from Misleading Marketing Regulations 2008.

From 1 March 2011, there will be a number of new sanctions.  These involve:



Providing details of an advertiser and the non-compliant marketing communication (appearing on the advertiser’s website or in other non-paid-for space online under the advertiser’s control) on an ASA microsite, to which the ASA may make a particular effort to draw public attention;

Removing, with the cooperation of the search engine, paid-for search advertisements that link directly to the page hosting the non-compliant marketing communication (either on the advertiser’s website or in other non-paid-for space online under the advertiser’s control); and

Placing paid-for advertisements on internet search engines that highlight the continued non-compliance of an advertiser’s marketing communication and link through to the ASA microsite described above.


The message from the ASA is clear: either comply with the CAP Code or face the consequences.  Therefore, all businesses urgently need to carry out audits of their online marketing communications and advertisements to make sure they comply with the CAP Code.   

If you wish to discuss this email, or any other brand or trade mark issue, please feel free to contact either your usual IP advisor at Ashfords. Similarly, should you wish to receive editions of the Ashfords' Brands Bulletin by email, please contact  g.holmes@ashfords.co.uk   

]]> http://www.advoc.com/view-news/Improvement+of+investment+climate+in+aircraft+manufacturing+-+Peritet+Law+Firm'2C+Ukraine/ http://www.advoc.com/view-news/Improvement+of+investment+climate+in+aircraft+manufacturing+-+Peritet+Law+Firm'2C+Ukraine/ Fri, 04 Feb 2011 14:48:01 +0000 On 11 February 2010 a new Law Amending Certain Laws of Ukraine Concerning State Support of Aircraft Manufacturing Industry (“Law No 1814-VI”) came into effect. Law No. 1814-VI is the law that investors were looking for, as it provides essential improvements to the investment climate of Ukraine.


First, it re-established a “180 days rule” for transferring export proceeds and importing goods instead of the “90 days rule” that had b[...]]]> On 11 February 2010 a new Law Amending Certain Laws of Ukraine Concerning State Support of Aircraft Manufacturing Industry (“Law No 1814-VI”) came into effect. Law No. 1814-VI is the law that investors were looking for, as it provides essential improvements to the investment climate of Ukraine.


First, it re-established a “180 days rule” for transferring export proceeds and importing goods instead of the “90 days rule” that had been in force since 24 November 2009. In particular, exporters are required to transfer foreign currency proceeds under export contracts back to Ukraine within the 180 days after the goods had been shipped abroad, not 90 days (as it had been previously). Similarly, importers are required to ensure the delivery of goods into Ukraine within the 180 days after the prepayment has been made.


Other positive improvements brought for investors dealing with aircraft manufacturing, manufacturing of plant and equipment that worked using an alternative kind of fuel or using such plants or equipment in business activities is the introduction of a new bonus tax depreciation rule. Parliament believe the new incentive will resolve the issue of capital replacement and attract new capital investments. The new rule provides that the part of capital expenses (from 50 to 100 per cent) spent on the acquisition of newly introduced plants and equipment are deductible for tax purposes in the first year of operation. The rule, however, has a termination period by year end of – (1) 2015 (for aircraft manufactures) and (2) 2018 (for manufactures and users of plants and equipment working on alternative kinds of fuel.)

]]> http://www.advoc.com/view-news/Australian+Taxation+Office+Targets+Foreign+PE+Firms/ http://www.advoc.com/view-news/Australian+Taxation+Office+Targets+Foreign+PE+Firms/ Fri, 04 Feb 2011 14:47:07 +0000 The Australian Taxation Office (ATO) has recently focused its attention on the taxation of profits made by foreign private equity
(PE) firms in Australia. This follows an ATO attempt in late 2009 to prevent foreign PE firm, TPG, from repatriating $1.5 billion in
profits made in relation to the public listing of an Australian company, Myer Limited.



At the time it sought to prevent TPG for moving the profits offshore, the ATO relied heavily [...]]]> The Australian Taxation Office (ATO) has recently focused its attention on the taxation of profits made by foreign private equity
(PE) firms in Australia. This follows an ATO attempt in late 2009 to prevent foreign PE firm, TPG, from repatriating $1.5 billion in
profits made in relation to the public listing of an Australian company, Myer Limited.



At the time it sought to prevent TPG for moving the profits offshore, the ATO relied heavily on the general anti-avoidance provision
in Australia’s income tax legislation, Part IVA of Income tax Assessment Act 1997. The ATO argued that TPG had improperly
derived a tax benefit by employing a structure which utilized Australia’s tax treaty with the Netherlands. In simple terms, the ATO
argued that TPG had ‘’treaty shopped’’ to implement a structure designed to alter the intended affect of Australia’s treaty network.


While the ATO’s investigation of TPG is still on-going, the ATO published in January 2010 two draft taxation determinations (TDs)
dealing with foreign private equity investment in Australia.


The first determination, TD 2009/D18, focuses on the character of the proceeds from the sale of investment assets. More
particularly, it considers whether a foreign PE firm will make a revenue or capital profit from the sale of Australian assets. In
broad terms the TD states that a foreign PE firm can make a revenue gain, but recognises that it is heavily dependent on the
circumstances of the investment.


The second determination, TD 2009/D17, focuses on treaty shopping and the application of Part IVA to in-bound investment
structures used by foreign PE firms in Australia. It specifically considers whether Part IVA can be applied to in-bound investment
structures which rely on the presence of one or more treaty country holding vehicles to attract preferential treatment under a tax
treaty, but which do not have significant commercial activity in the relevant treaty country. In broad terms the TD confirms that
Part IVA can apply in such circumstances and then proceeds to set out a number of practical examples in which the ATO will apply
Part IVA.

]]> http://www.advoc.com/view-news/Requirements+concerning+the+form+of+arbitration+agreements+-+LSV+Rechtsanwalts+GmbH'2C+Germany/ http://www.advoc.com/view-news/Requirements+concerning+the+form+of+arbitration+agreements+-+LSV+Rechtsanwalts+GmbH'2C+Germany/ Fri, 04 Feb 2011 14:46:07 +0000 In a recent judgement of 23. November 2009 the Munich Higher Regional Court (OLG) stated some interesting principals upon the requirements concerning the form of arbitration agreements. The court had to decide upon the following facts:


The respondent ordered from applicant the delivery of apricots. The applicant sent a confirmation of sale, which contained an arbitration clause, and delivered the goods. After the delivery the respondent sent a notification of defe[...]]]> In a recent judgement of 23. November 2009 the Munich Higher Regional Court (OLG) stated some interesting principals upon the requirements concerning the form of arbitration agreements. The court had to decide upon the following facts:


The respondent ordered from applicant the delivery of apricots. The applicant sent a confirmation of sale, which contained an arbitration clause, and delivered the goods. After the delivery the respondent sent a notification of defects of the goods and paid only a partial amount of applicant’s invoice. The applicant initiated an arbitration proceeding claiming the outstanding amount.The respondent objected to the jurisdiction of the arbitral tribunal. The tribunal affirmed its jurisdiction and rendered an arbitration award ordering the respondent to pay the outstanding amount of the invoice.


The applicant filed an application before the Munich Higher Regional Court to declare the award enforceable.


The respondent objected to the declaration of enforceability arguing that the parties had not concluded an arbitration agreement. The Munich Higher Regional Court refused to declare the award enforceable and ruled that the award was not to be recognised in Germany. It held that a written arbitration agreement for the purpose of Art. II sub. 2 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) of 1958 did not exist.


The court argued that the unilateral confirmation of sale did not comply with the formal requirements of Article II sub. 2 NYC as it requires that an arbitration agreement is contained in documents that have been changed by the parties. A unilateral transmission of a document does not fulfil these requirements. The fact that the respondent notified the applicant of the defects of the goods on the confirmation of sale containing the arbitration clause was irrelevant. Article II sub. 2 NYC requires at least a formal congruence of the parties’ will. This requires that - at least by means of interpretation - one must be able to deduce from the party’s conduct that it actually intended to conclude an arbitration agreement.


However, in the present case such intend could not be established as respondent’s correspondence after the conclusion of the contract was intended to notify the respondent on the defects of the goods. That respondent - for reasons of convenience - used the confirmation of sale containing the arbitration agreement was not sufficient to assume that respondent actually intended to conclude an arbitration agreement. Therefore the request of the applicant to have a French arbitral award declared enforceable was rejected by the Munich court.

]]> http://www.advoc.com/view-news/U-|S-|+Reporting+Obligations+Related+to+Foreign+Bank+and+Financial+Accounts/ http://www.advoc.com/view-news/U-|S-|+Reporting+Obligations+Related+to+Foreign+Bank+and+Financial+Accounts/ Fri, 04 Feb 2011 14:44:17 +0000 1. Introduction


There has been extensive publicity surrounding the settlement and negotiation between the United States government, the government of Switzerland and UBS AG involving the release of the names of United States persons that maintain foreign financial accounts with UBS AG. The pursuit of United States persons with accounts at UBS AG is based on the United States requirement that United States persons must report interests in foreign financial accounts[...]]]> 1. Introduction


There has been extensive publicity surrounding the settlement and negotiation between the United States government, the government of Switzerland and UBS AG involving the release of the names of United States persons that maintain foreign financial accounts with UBS AG. The pursuit of United States persons with accounts at UBS AG is based on the United States requirement that United States persons must report interests in foreign financial accounts and the United States government’s belief that United States persons were using UBS AG accounts as a means to avoid paying United States tax.


In October 2008, the Internal Revenue Service (“IRS”) published revised instructions to Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (“FBAR”) that changed the definition of a U.S. person to include any person “in and doing business in the United States.” These instructions created numerous questions including the definition of doing business in the United States and whether foreign persons treated as U.S. persons under this definition were required to report all of their foreign financial accounts or only those related to their U.S. business activities.


2. Background


The Bank Secrecy Act (“Act”) gives the U.S. Department of Treasury authority to establish record keeping and filing requirements for United States persons with financial interests in or signature authority over financial accounts maintained with financial institutions in foreign countries. Any United States person who has a financial interest or signature authority over foreign financial accounts, the aggregate balances of which exceed US$10,000 at any time during the calendar year, must report that relationship to the Department of Treasury by filing an FBAR by June 30 of the subsequent year.


If a U.S. person fails to comply with the FBAR requirements set forth in the Act, significant penalties, ranging from US$10,000 for ordinary violations to the greater of US$100,000 or half the value of the foreign account for willful violations, may apply. A reasonable cause exception is available to the ordinary penalty.


On 26 February 2010, the Financial Crimes Enforcement Network (“FinCEN”) issued proposed rules relating to FBAR reporting and the IRS released two documents which further clarify FBAR reporting requirements. These recent developments are discussed below.


3. Requirements to File the FBAR


a.Who Must File FBAR?


Under the current federal regulations implementing the Act, each person subject to the jurisdiction of the United States having a financial interest or signature authority over a bank, securities, or other financial account in a foreign country must report that relationship to the IRS each year. This obligation arises only when the aggregate value of the foreign accounts exceed US$10,000 at any time during the year.


b.Definition of United States Person.


The revised 2008 Form TD F 90-22.1 expanded the definition of “United States person” to include a citizen or resident of the United States or a person in, and doing business in, the United States. The term “person” includes individuals and all forms of business entities, trusts, and estates.


The proposed FBAR rules would revise the regulations implementing the Act to define a United States person as a “citizen or resident of the United States, or an entity, including but not limited to a corporation, partnership, trust, or limited liability company, created, organized or formed under the laws of the United States, any state, the District or Columbia, the Territories and Insular Possession of the United States or the Indian Tribes.” The proposed FBAR rules clarify that all entities meeting that definition, regardless of whether that entity is treated as a disregarded entity for United States tax purposes, are United States persons under the proposed FBAR rules. The determination of whether an individual is a resident will be determined under the rules of the Internal Revenue Code (the “Code”).


In connection with this proposed definition, which does not include non-United States persons regardless of their connection to the United States, the IRS released Announcement 2010-16, which suspends the requirement to file Form TD F 90-22.1 for persons that are not United States citizens or residents, or domestic entities for 2009 and earlier years. If the revised regulations are adopted as proposed by FinCEN and the instructions to the Form TD F 90-22.1 are correspondingly revised, it is likely that the requirement of foreign persons to file a Form TD F 90-22.1 will be suspended indefinitely.


a. Definition of Foreign Financial Accounts.


Under the proposed FBAR rules, “Foreign Financial Account” means a formal relationship with a foreign financial agency to provide regular services, dealings and other financial transactions. Specifically, the proposed FBAR rules would revise the regulations to include definitions of “bank account”, “securities account” and “other financial accounts”. As proposed, the term (1)“bank account” means a savings deposit, demand deposit, checking, time deposit or any other account maintained with a person engaged in the business of banking (2) “securities account” means an account maintained with a person in the business of buying, selling, holding, or trading stock or other securities; and (3) “other financial accounts” would include (i) an account with a person that is in the business of accepting deposits as a financial agency; (ii) an account that is an insurance policy with a cash value or an annuity policy; (iii) an account with a person that acts as a broker or dealer for futures or options transactions in any commodity on or subject to the rules of a commodity exchange or association; or (iv) an account with a mutual fund or similar pooled fund which issues shares available to the general public that have a regular net asset value determination and regular redemptions. The definition of “other financial account” also includes an account that is an insurance policy with a cash value or an annuity policy.


In response to concerns arising after the issuance of the IRS’s 2008 instructions to Form TD F 90-22.1, the proposed FBAR rules issued by FinCEN, specifically states that individuals who invest in certain types of pooled investment companies, such as private equity funds, venture capital funds and hedge funds will not have an interest in a foreign account for purposes of the Act.


b. Definition of Financial Interest.


A United States person has a financial interest in a foreign account for which the United States person is the owner of record or has legal title, whether the account is maintained for his or her own benefit or for the benefit of others including non-United States persons. A U.S. person also has a financial interest in each foreign financial account for which the owner of record or holder of legal title is: (1) a person acting as an agent, nominee, or in some other capacity on behalf of a U.S. person; (2) a corporation in which a U.S. person directly or indirectly owns more than 50 percent of the total vote or value of the shares of stock; (3) a partnership in which the U.S. person owns interest in more than 50 percent of the profits or capital of the partnership; (4) a trust in which a U.S. person either has a present beneficial interest in more than 50 percent of the assets or receives more than 50 percent of the current income.


c. Definition of “Signature Authority.”


Currently, the regulations require FBAR reporting by any person who has signature or other authority over a foreign financial account if that person can control the disposition of money, funds, or other property in the account by delivery of instructions (whether or not communicated in writing) to the bank or to any other person with whom the account is maintained. The proposed FBAR rules provide that officers and employees of certain banks, financial institutions, Authorized Service Providers, or entities with a class of equity securities listed on any U.S. national securities exchange that have signature authority over foreign accounts maintained by their employer need not file a report concerning such signature authority if the officer or employee does not have a financial interest in that account.


4. Observations


The proposed FBAR rules provide welcomed relief to foreign persons with investments or business activities in the United States. However, the current regulatory climate in the United States indicates that there will be additional reporting and withholding obligations for foreign persons making payments to U.S. persons.

]]> http://www.advoc.com/view-news/Funds+find+a+new+home+in+Gibraltar/ http://www.advoc.com/view-news/Funds+find+a+new+home+in+Gibraltar/ Fri, 04 Feb 2011 14:41:02 +0000 Despite numerous proposed changes, Gibraltar is well placed to capitalise on to the proposed European Directive controlling Fund Managers, argues Joey Garcia.


Initially at least, there was considerable anger and frustration that the European Commission’s draft Directive on Alternative Investment Fund Managers (AIFM) had been prepared with little or no industry consultation. The Directive affects not only the European hedge fund industry, but also private equ[...]]]> Despite numerous proposed changes, Gibraltar is well placed to capitalise on to the proposed European Directive controlling Fund Managers, argues Joey Garcia.


Initially at least, there was considerable anger and frustration that the European Commission’s draft Directive on Alternative Investment Fund Managers (AIFM) had been prepared with little or no industry consultation. The Directive affects not only the European hedge fund industry, but also private equity and other sectors, including real estate investment products.


In a recent public hearing before the EU Economics and Monetary Affairs (ECON) Committee, Gerben Everts, head of Dutch pension manager APG’s global regulations and compliance, was very direct in pointing out that, “If it is indeed the intention of the Directive to increase transparency on the alternative asset management industry, why do you, honourable members, accept the regulatory process to take place in the dark?”


However, changes to the draft Directive mean that Gibraltar still stands to benefit, but possibly less so, in some areas.


Initially, it was intended to restrict Alternative Investment Funds not domiciled in the EU being marketed or sold to any professional investors (as defined by MiFID) unless a series of strict conditions were met. The benefit for Gibraltar, as a jurisdiction offering a European entry point for many Non-EU collective investment vehicles, was obvious.


However, a series of (138) amendments proposed by Jean-Paul Gauzès, rapporteur for the European Parliament’s Committee on Economic and Monetary Affairs, has substantially amended this provision.


Now it is suggested that institutional investors should be able to choose where they wish to put their money, and that they should
be able to invest through existing and preserved national placement regimes.


However, the same proposals also suggest a restriction on hedge funds investing more than 30 per cent in funds domiciled outside of the EU.


Other suggestions made by Gauzès also bode well for Gibraltar, including the removal of the suggestion of regulation of funds with less than €100m in assets under management (AUM). This would keep the niche, boutique or family office manager out of the scope of the Directive.


On the whole, many of the concerns raised by investors have been taken into account and can be seen percolating into the draft legislation, although there are still industry concerns in relation to the regulation of short selling and the use of leverage. Moving forward, there will be a second consideration given to the amendments to the Directive proposed by Gauzès in March of this year, which should be followed by a vote in ECON on the amendments in April. The draft directive could then be subjected to a maximum of three readings if the European Council and the European Parliament are unable to reach an agreement on the report, with a target deadline of January 2012 for the implementation of the directive in national law.


Regardless of these changes, Gibraltar continues to offer an attractive EU base for managers and promoters wishing to bring their products into an EU regulatory framework and seeking the EU regulated ‘stamp’ on their investment products.


This is particularly so at a time when the Gibraltar Funds industry is gathering momentum.


Developments elsewhere - such as a substantial increase in Cayman registration fees following that country’s well-reported budget deficit – could also assist Gibraltar in gaining a greater market share.


In the post-Madoff environment, the trend of domiciling funds in well regulated and supervised jurisdictions such as Gibraltar has gained popularity and we expect this trend to continue.


There will be continued interest in the re-domiciliation of Funds into Gibraltar from various offshore and non-EU centres.


The procedure for re-domiciliation under the existing Gibraltar Companies (Re-Domiciliation) Regulations 1996 is quick, simple and effective


The process ensures continuity of performance, allows for assets to remain untouched without the need for transfers or adjustments and crucially, provides for unit holders to remain registered as they did in the foreign jurisdiction.


The fund must be domiciled in a jurisdiction recognised by Gibraltar for this purpose and must have appropriate provisions in its laws. The charter, statutes or memorandum and articles or other instrument constituting or defining the foreign company must also allow for re-domiciliation.


Continuance of a foreign company in Gibraltar does not create a new legal entity or prejudice its continuity, nor does it affect the assets or property originally held. The company will not be released from any contractual obligations, claims and/or actions.


From a Gibraltar perspective, the process of re-domiciliation can be easily managed. An application for consent to be continued in Gibraltar has to be submitted to the Registrar with the required documentation.


The foreign company’s offering memorandum, as well as its constitutional documentation, is needed to comply with Gibraltar law. Amendments to this documentation need to be made so the company can carry on business as an Experienced Investor Fund (EIF), Gibraltar’s premier alternative fund vehicle.


Other minor formalities combined with the verification of the fund’s technicalities and the discontinuation of the foreign company in its jurisdiction is also necessary.


The Financial Services Commission needs to be satisfied that the company is in compliance with local financial services supervisory laws before granting EIF status.


The company is required to appoint a local fund administrator, auditor and at least two directors, all authorised by the Regulator.


The existing investors must also qualify as “Experienced Investors” (as defined in the legislation).


Once the foreign company becomes a Gibraltar company, all counterparties are appointed and the documentation is in place, the standard EIF registration procedure is followed, including an opinion from Gibraltar counsel confirming that the EIF satisfies the relevant Financial Services legislation.

]]> http://www.advoc.com/view-news/Personal+Property+Securities+and+Investment+in+New+Zealand/ http://www.advoc.com/view-news/Personal+Property+Securities+and+Investment+in+New+Zealand/ Fri, 04 Feb 2011 14:37:12 +0000 In New Zealand the Personal Property Securities Act 1999 (PPSA) (which is similar to regimes currently operating in the US and Canada and that which recently received royal assent in Australia) governs the creation and enforcement of security interests over personal property.


The PPSA largely regulates the priority of competing security interests in the same personal property and, generally speaking, under the PPSA security interests which are “perfectedR[...]]]> In New Zealand the Personal Property Securities Act 1999 (PPSA) (which is similar to regimes currently operating in the US and Canada and that which recently received royal assent in Australia) governs the creation and enforcement of security interests over personal property.


The PPSA largely regulates the priority of competing security interests in the same personal property and, generally speaking, under the PPSA security interests which are “perfected” (in that they have “attached” (through the existence of a valid security agreement) and have been registered on New Zealand’s Personal Property Securities Register) have priority over subsequently perfected security interests and other unperfected competing securities.


For the purposes of the PPSA, “personal property” includes almost all property other than land (and includes chattel paper, documents of title, intangibles (e.g. intellectual property), investment securities (e.g. shares) and negotiable instruments) and a “security interest” is an interest created or provided for by a transaction which in substance secures payment or performance of an obligation. Under the PPSA certain other transactions are also deemed “security interests” (e.g. leases of goods for a term of more than one year).


The PPSA affects anyone who deals with personal property in New Zealand. Those making new investments in New Zealand will need to consider its effects when purchasing personal property as part of a business asset purchase. Others with investments in New Zealand who also need to consider the effects of the PPSA are financiers and borrowers and suppliers of goods and services.

]]> http://www.advoc.com/view-news/Steps+Made+in+Hungary+for+the+Wider+Protection+of+Consumer+Clients+against+Financial+Institutions/ http://www.advoc.com/view-news/Steps+Made+in+Hungary+for+the+Wider+Protection+of+Consumer+Clients+against+Financial+Institutions/ Fri, 04 Feb 2011 14:35:15 +0000 Similar to other countries, financial institutions tried to shift their expenses – increased as a result of the financial crisis – to their clients mainly by raising significantly the interest, fee, and cost element of the contract concluded with them. Partly as a result of the highly increased payment instalment, and partly due to other negative effects of the financial crisis (e.g. loss of workplace), many individuals got into difficult situations, which resulted in the no[...]]]> Similar to other countries, financial institutions tried to shift their expenses – increased as a result of the financial crisis – to their clients mainly by raising significantly the interest, fee, and cost element of the contract concluded with them. Partly as a result of the highly increased payment instalment, and partly due to other negative effects of the financial crisis (e.g. loss of workplace), many individuals got into difficult situations, which resulted in the non-performance or default of their credit, and the loss of their real estates provided as security.


In order to avoid these consequences becoming disadvantageous for retail clients, to restrict the – previously almost unlimited – possibility of the financial institutions increasing the clients’ burdens (mainly by unilateral modification of their contract), to secure the detailed information of the clients and to provide a wider protection for them, the following steps were made during 2009:


(i) the terms and conditions of unilateral modification of the loan agreements concluded by and between financial institutions and consumer clients has been regulated by law (latest modification thereof came into effect as of 1st January 2010);


(ii) the Code of Conduct including the principles of fair conduct by financial organizations engaged in retail lending has been created and signed by all major financial institutions (came into effect as of 1st January 2010);


(iii) in compliance with the 2008/48/EC Directive an act on retail lending has been adopted by the parliament (its provisions came (will come) into effect in two stages: as of 1st March 2010 and 11th June 2010); and


(iv) the maximum amount of loan being granted for consumer clients, the terms of prudent retail lending and the assessment of creditworthiness has been regulated in a separate decree by the government (the provisions thereof came (come) into effect in two stages: as of 1st March 2010 and 11th June 2010).


As indicated above, these regulations came (will come) into effect in more steps, granting enough time for the financial institutions to secure their operations in compliance with the new (or modified) rules.


Our Law Office provided, and also provides at present, legal service for many of its clients in the subject of the proper interpretation and implementation of the aforementioned rules and the Code of Conduct and, further from this perspective, in the subject of the review and modification of the sample-documents used in their everyday operation.

]]> http://www.advoc.com/view-news/Earthquake+in+Chile+-+Some+views+with+respect+to+insurance-|/ http://www.advoc.com/view-news/Earthquake+in+Chile+-+Some+views+with+respect+to+insurance-|/ Fri, 04 Feb 2011 14:33:48 +0000 The strong earthquake and tsunami on 27 of February 2010, caused extensive and severe damage to both public and private property, including productive centers and infrastructure. Legal consequences are manifold and, with respect to insurance, are relevant for civil liability covers and eventual subrogation action against insurers of physical assets.


For those that may invoke the earthquake as an unforeseeable act of force majeure (Act of God), then this represents[...]]]> The strong earthquake and tsunami on 27 of February 2010, caused extensive and severe damage to both public and private property, including productive centers and infrastructure. Legal consequences are manifold and, with respect to insurance, are relevant for civil liability covers and eventual subrogation action against insurers of physical assets.


For those that may invoke the earthquake as an unforeseeable act of force majeure (Act of God), then this represents an exempting circumstance to liability. An Act of God terminates obligations and the compliance thereof becomes impossible. It may have an objective character, if the impossibility of performing an obligation is absolute and fulfillment is not possible, no matter what degree of diligence is employed. It may be subjective, and assimilates to the lack of guilt, if the impediment is not absolute but it can be overcome by exacting the appropriate diligence.


In order for the event to be validly invoked as a ground for exemption it must be irresistible and unforeseeable, thus making compliance impossible even though necessary and reasonable precautions were taken. It is true that an earthquake is expressly mentioned in Article 45 of the Civil Code (enacted in 1845) as an example of an Act of God. But it is now not accepted that every earthquake must always be irresistible and therefore configures such cause for exemption. In old cases of shipwrecks, which the Civil Code also mentions as force majeure or Acts of God, courts have not accepted it per se as an exempting circumstance to liability, maintaining that the shipowner’s liability shall depend on the negligence committed by the Captain or crew (Valdes vs. the State of Chile, Supreme Court, 31 May 1918). It shall be necessary to examine in each case; if the appropriate diligence had been employed, would it have been possible to avoid - or diminish - the consequences of the catastrophe? The higher degree of onerosity should not be an element in such analysis, unless stipulated in the contract.


Courts have decided that, due to their frequency in Chile, an earthquake of regular intensity does not constitute force majeure or an Act of God (Porzio v. De Cabri and Shell, Supreme Court, August 1941). What happens in the case of a severe earthquake? In this same decision, the Court stated that force majeure or an Act of God is a question of fact and must be established in each case. With respect to the unforeseeable aspect, it shall be necessary to take into account in any analysis how frequently Chile is affected by medium and high-intensity earthquakes.


With respect to construction, for some decades now anti-seismic regulations have been applied which take into account the different areas of the country according to their seismic threat. The purpose of these regulations is to limit damage to nonstructural elements in the event of medium-intensity earthquakes, and to prevent collapse, in the event of exceptionally severe earthquakes. Collapse must be understood as the destruction or ruin of the structure. Also, the examination of an eventual liability cannot ignore standards that, at the time of construction, were included in good construction and engineering practices for areas exposed to severe earthquakes.


Thus, construction damages attributed to negligent conduct may not rely on the occurrence of an earthquake to invoke force majeure or an Act of God as an exempting circumstance to liability. Technical aspects that appear to be relevant in a liability analysis include soil mechanics, structure calculus, execution of construction, and sufficiency and quality of materials, among others. Naturally, each situation must be viewed within its own context.


On the other hand, and from a contractual point of view, the delay of one of the parties in delivering a good may transfer to the debtor the risk of loss or damage caused by an event considered as force majeure or an Act of God, such as an earthquake. In general, the owners of goods support its destruction or damages. But Article 1672 of the Chilean Civil Code states that, if the thing perishes or is damaged due to force majeure or an Act of God and the debtor is overdue in delivering the said thing, then the debtor must compensate the creditor for all damages, unless the thing would have perished anyway due to the force majeure or Act of God, if it had been in the hands of the creditor. In the last case, the debtor in arrears shall owe only the damages due to the delay, and not those due to the loss of the thing as a consequence of the force majeure or Act of God.


Finally we shall mention that the definitions of “event”, “occurrence” and “damage due to the same cause” in the different insurance policies are key to establishing the limits and deductibles applicable to each case, as the events that occurred in Chile not only include the earthquake of February 27, but also a subsequent tsunami, aftershocks and even earthquakes that could be independent from the first one.

]]> http://www.advoc.com/view-news/Electronic+mailboxes+mandatory+in+the+Czech+Republic/ http://www.advoc.com/view-news/Electronic+mailboxes+mandatory+in+the+Czech+Republic/ Fri, 04 Feb 2011 14:32:15 +0000 As part of the ongoing e-government reform, the electronic mailbox system was introduced in the Czech Republic during the second half of 2009. The main idea of this project was the simplification and cost decrease for communication between the state and private entities. In principle, the electronic mailbox operates just like an email, but the delivery of messages is guaranteed and it is the equivalent of sending a registered letter.


Starting from 1 November 2009,[...]]]> As part of the ongoing e-government reform, the electronic mailbox system was introduced in the Czech Republic during the second half of 2009. The main idea of this project was the simplification and cost decrease for communication between the state and private entities. In principle, the electronic mailbox operates just like an email, but the delivery of messages is guaranteed and it is the equivalent of sending a registered letter.


Starting from 1 November 2009, all corporate entities registered in the Commercial Register were assigned electronic mailboxes and are obliged to accept official correspondence through them, i.e. it should be the preferred method for delivery of official correspondence to them. In contrast, individuals (except legal professionals) may freely decide whether to apply for an electronic mailbox.


A message sent to an electronic mailbox is considered delivered after either (i) successful login into the electronic mailbox interface or (ii) lapse of 10 days after the message was deposited in the electronic mailbox, whichever is the earlier. The messages are deleted from the electronic mailbox after 90 days from their delivery.


The login information for access the electronic mailbox interface is sent by registered mail to each of the directors of the company and has to be claimed by the Director personally. The letters are sent based on the addresses registered in the Czech Commercial Register. Each Director may authorise other individuals to access or administer the electronic mailbox.


Unfortunately for foreign investors and Directors, the entire electronic mailbox system was designed in Czech only and therefore the mailbox interface, support hotline and even the letters with login information are not available in other languages.


To complement the electronic mailboxes, the Czech law newly regulates certified conversion between electronic and paper form of documents. However, there are currently some unresolved issues on evidencing the validity of official documents in electronic form after some time has lapsed. Therefore, we recommend (at least for now) converting all such documents received into the electronic mailbox to the paper form in order to avoid potential inconveniences in the future.


While the new electronic mailbox system shows great potential to reform communication between public and private entities, some outstanding issues still exist. For all foreign investors and directors in the Czech Republic it should be stressed that (i) they should make sure that they have received and kept private their login information; (ii) the electronic mailbox must be accessed at least once in every 10 days; (iii) their company has sufficiently arranged for archiving of correspondence received through the electronic mailbox.

]]> http://www.advoc.com/view-news/Labuan+Enters+into+a+New+Dawn+through+Legislative+Changes/ http://www.advoc.com/view-news/Labuan+Enters+into+a+New+Dawn+through+Legislative+Changes/ Fri, 04 Feb 2011 14:30:55 +0000 Effective 11th February 2010, the Labuan Offshore Financial Services Authority (LOFSA) is now known as Labuan Financial Services Authority (“Labuan FSA”). This change coincided with the enactment of four new Acts and the amendments made to four existing Acts affecting the Labuan FSA.


“The changes have taken into consideration all aspects so that we are ahead of accepted international standards and practices,” said Labuan FSA Director-Genera[...]]]> Effective 11th February 2010, the Labuan Offshore Financial Services Authority (LOFSA) is now known as Labuan Financial Services Authority (“Labuan FSA”). This change coincided with the enactment of four new Acts and the amendments made to four existing Acts affecting the Labuan FSA.


“The changes have taken into consideration all aspects so that we are ahead of accepted international standards and practices,” said Labuan FSA Director-General Datuk Azizan Abdul Rahman. (Courtesy of Bernama)


These changes have re-emphasized Labuan as a major player within the international offshore business financial centres. These new enactments have made positive changes in the way the Labuan operates whilst enhancing its product and services offering. Among the recent changes was the introduction of the Labuan Foundations Act 2010. The law was expected to dramatically improve Labuan and completely change the way the duty-free Island conducts its financial services business, especially within the trust fraternity.


A Foundation is a legal entity different to any other entity known in Anglo-Saxon Law. A Foundation is not the legal personification of any other person or persons but a corporate body that has no owners (shareholders, participants or partners), and which traditionally has charitable or philanthropic aims for the benefit of a generality of persons.


Some advantages of a Labuan Foundation include the fact that it is far less expensive to create and to maintain and it offers more flexibility for the client. A Labuan Foundation (“Foundation”) is created when one or more natural persons or legal entities (“Founder (s)”) formalize a document known as a “Charter”, which is registered with the Labuan FSA, through which the parties undertake to endow assets (“Foundation Assets”) to be managed by a “Council” or an “Officer”, if appointed, for the benefit of one or more “beneficiaries”. A Labuan Foundation is a combination of a trust and a corporation. In general, a Foundation has similarities with a corporation in so far as it is registered at the Labuan FSA, the assets of this new legal entity are separate from those of the Founder, it is constituted to maintain confidentiality on the ownership of assets and in order to obtain fiscal benefits, and it has similar administrative bodies. It differs from a corporation in that the Foundation has no owners, as it does not issue share certificates nor any other participation title, and a Foundation may be created as a testamentary instrument and may not have profit aims.


Likewise, a Foundation has similarities to a trust: it is a juridical institution that requires specific formalities; some of the Founder’s assets are transferred, contributed or “donated” to the Foundation; a Foundation may be revocable; it may be created intervivos or mortis-causa by means of testamentary provisions and it is usually created with the purpose of managing, preserving, administering or investing assets for the benefit of the donor’s close relatives, as well as to obtain confidentiality and fiscal benefits. It differs from a trust in so far as the Foundation is the owner of its assets, since it possesses its own legal personality and there is no “trustee” but rather the figure of a “Foundation Council” which combines the functions of the “Board of Directors” (of a corporation) and the functions of a “trustee” (of a trust).


Assets placed inside a Labuan Foundation are sole and separate property and cannot be seized to satisfy any personal judgments or obligations of the Founder or the Foundation’s beneficiaries. Assets inside a Labuan Foundation cannot be attached in order to satisfy any claims against the Founder, including judgments for divorce, lawsuit and other liabilities.


The Labuan Foundation offers the best of a trust and the best of an offshore corporation. While the Foundation cannot technically engage in business activities, it can own the shares of a company engaged in business activities. It is also permissible for the foundation to engage in any activity, which will increase the value of assets. This means that a Foundation can be the owner of bank accounts, securities brokerage accounts and real estate holdings, etc.


This is only one of the new initiatives that the Labuan FSA had brought forward through its new legislative initiatives. “Labuan has always been seen as an effective and user friendly jurisdiction”, said David Kinloch, CEO of Labuan IBFC, the sales and marketing unit for the Island, “but these new provisions will make it possible for us to attract and welcome many new categories of clients. Malaysians with foreign assets or foreigners with Malaysian assets are now able to structure their investments via Labuan IBFC. This allowance is made even more attractive by the new trust and estate management products also introduced by the new legislation,” he added. (Courtesy of Labuan IBFC Press Release).


The new laws came into effect on 11 February 2010. In addition to the Labuan Foundations Act, comprehensive amendments have been made to four existing laws, as well as the introduction of new legislations to facilitate limited liability partnerships, shipping registry, trust, protected cell companies and captive insurance.

]]> http://www.advoc.com/view-news/Exchange+of+Information+between+Swiss+and+Foreign+Tax+Authorities+and+the+new+Role+of+the+Swiss+Banking+Secrecy/ http://www.advoc.com/view-news/Exchange+of+Information+between+Swiss+and+Foreign+Tax+Authorities+and+the+new+Role+of+the+Swiss+Banking+Secrecy/ Fri, 04 Feb 2011 14:29:03 +0000 Over the last few months, Switzerland has renegotiated double taxation treaties with several countries and continues to do so. In fact, we mainly talk about amendments and additions to existing treaties. The countries in questions are, among others, the United States, Luxembourg, Norway, Denmark, France, Great Britain, Katar, Mexico, Finland, Italy and Germany.1


The most important amendment refers to the exchange of information between tax authorities. So far, all[...]]]> Over the last few months, Switzerland has renegotiated double taxation treaties with several countries and continues to do so. In fact, we mainly talk about amendments and additions to existing treaties. The countries in questions are, among others, the United States, Luxembourg, Norway, Denmark, France, Great Britain, Katar, Mexico, Finland, Italy and Germany.1


The most important amendment refers to the exchange of information between tax authorities. So far, all Swiss double taxation treaties already include exchange of information, but they were restricted to judicial assistance with a focus on tax fraud.


Now, however things will change. The amended tax treaties will provide for administrative assistance. Administrative assistance means mutual furnishing of information between tax authorities based on official requests. This will allow Swiss and foreign tax authorities to obtain information not only regarding assumed offences of tax laws – however to be defined – but also to obtain any information necessary for assessment activities in general. The Model Tax Convention of the OECD mentions as information to be exchanged any “forseeably relevant for carrying out the provisions of this Convention or the administration or enforcement of the domestic laws concerning taxes of any kind…”2. So, in future, foreign tax authorities will be allowed to request detailed information from Swiss authorities concerning individuals taxable in their country. An automatic exchange of information, however, is not planned and is out of question at the moment. In any case, a dramatic change regarding the exchange of information in tax matters is now at stake.


The change goes back to a decision made by the Federal Council of Switzerland dated 13 March 2009. Then, the Swiss government decided to adopt on unlimited basis the standard according to Art. 26 of the OECD model tax convention on income and capital. This, again, was based on the declared policy to not allow any form of international tax dodging.


What about banking secrecy? For Swiss citizens the banking secrecy will remain. Swiss tax authorities will not be able to obtain tax information on individuals from banks, except in cases of assumed tax fraud. The situation, however, is different for foreign tax authorities. Based on formal request, Swiss banks in future will have to reveal if a foreign individual has an account with the bank. According to federal tax authorities the request will have to contain, for instance, the reason for the request, details about the individual in question, the tax period referred to etc.


The described changes have not yet entered into force. They still must pass both chambers of our federal parliament and will be subject to a facultative referendum. So, from the present view, it is not clear, if, and at which time, a change in the policy of exchange of information in tax matters will take place. However there is a high likelihood that the change will come: at the very earliest, this could be in October this year.

]]> http://www.advoc.com/view-news/The+Treaty+of+Lisbon+and+Foreign+Direct+Investment/ http://www.advoc.com/view-news/The+Treaty+of+Lisbon+and+Foreign+Direct+Investment/ Fri, 04 Feb 2011 14:27:56 +0000 The Treaty of Lisbon brought into being “The Treaty on the Functioning of the European Union” (TEU). The TEU modified many policy areas of the European Union (EU), including the “Common Commercial Policy” (CCP). The CCP is now governed by Article 207 TEU and contains a number of new elements, one of which is foreign direct investment (FDI). Article 207 (1) TEU does not define the term FDI. Ultimately, therefore, the interpretation of this term is left to the Cour[...]]]> The Treaty of Lisbon brought into being “The Treaty on the Functioning of the European Union” (TEU). The TEU modified many policy areas of the European Union (EU), including the “Common Commercial Policy” (CCP). The CCP is now governed by Article 207 TEU and contains a number of new elements, one of which is foreign direct investment (FDI). Article 207 (1) TEU does not define the term FDI. Ultimately, therefore, the interpretation of this term is left to the Court of Justice.


FDI is commonly understood as the acquisition by a direct investor of a lasting interest in an enterprise established in a country other than that of the direct investor. Such acquisition confers to the direct investor a significant degree of influence on the management of the foreign enterprise concerned. The position that was taken previously by the EU in the (now discontinued) WTO “Working Group on the Relationship between Trade and Investment” is fully in line with the aforementioned understanding. In a communication to said Working Group, the EU pointed out that two criteria are decisive in determining FDI: (a) a long-term
relationship between the direct investor and the foreign enterprise, and (b) a significant degree of influence of the direct investor on the management of the foreign enterprise.


While it is clear that the EU’s position in the aforementioned Working Group is not determinative of the understanding of FDI under Article 207 (1) TEU, it indicates what this notion would seem to encompass. Further, Article 207 (1) TEU does not qualify the term “foreign direct investment”, contrary to the term “commercial aspects of intellectual property”. This suggests that the protection of FDI, as reflected in bilateral investment treaties (BITs) concluded by EU Member States, comes under the notion of FDI in Article 207 (1) TEU.


The foregoing raises the question whether EU Member States retain any competences in the area of FDI, in particular with regards to the negotiation and conclusion of BITs. In principle, this question has to be answered in the negative because the CCP  falls within the exclusive competence of the EU, pursuant to Article 3 (1) lit. (e) TEU. However, pursuant to Article 207 (6) TEU, the “exercise of the competences” conferred by Article 207 must “not affect the delimitation of competences between the Union and the Member States”. Given the far reaching scope of investment protection offered by existing BITs and their consequent impact on the regulatory conduct of the host states, it is quite conceivable that the EU does not possess an exclusive competence with regards to FDI. Consequently, trade agreements that include investment protection provisions similar to those in existing BITs would have to be concluded jointly by the EU and its Member States as mixed agreements.


To sum up: the EU’s exercise of the competences in the area of FDI may lead to certain frictions with EU Member States where a trade agreement is supposed to include provisions on the protection of FDI similar in scope to those contained in BITs. With respect to the case law of international arbitration tribunals in the area of investment protection, it may be argued that the impact of such provisions on the regulatory power of EU Member States could exceed the competences of the EU. In this case, the trade agreement in question would have to be concluded jointly by the EU and its Member States as a “mixed agreement”.

]]> http://www.advoc.com/view-news/New+powers+give+the+Information+Commissioner+the+right+to+levy+fines+of+up+to+'C2'A3500'2C000/ http://www.advoc.com/view-news/New+powers+give+the+Information+Commissioner+the+right+to+levy+fines+of+up+to+'C2'A3500'2C000/ Fri, 04 Feb 2011 14:26:48 +0000 The Information Commissioner has been granted new statutory powers to issue fines of up to £500,000 to data controllers who commit a serious breach of the Data Protection Act 1998 (“DPA”) on or after the 6th of April 2010, when the new powers came into force.



The Information Commissioner, Christopher Graham, commented in a press statement issued January 2010 that the new penalties are designed as a deterrent to promote compliance with the[...]]]> The Information Commissioner has been granted new statutory powers to issue fines of up to £500,000 to data controllers who commit a serious breach of the Data Protection Act 1998 (“DPA”) on or after the 6th of April 2010, when the new powers came into force.



The Information Commissioner, Christopher Graham, commented in a press statement issued January 2010 that the new penalties are designed as a deterrent to promote compliance with the DPA and that “…[he] will not hesitate to use these tough new sanctions for the most serious cases where organisations disregard the law.” It is no secret that the Information Commissioner’s Office (ICO) has been pushing for tougher sanctions for some time, so all that remains is to ‘watch this space’ and wait to see which organisation falls foul of the new regime and becomes the first to suffer from the resulting financial repercussions and bad publicity.



The Guidance



The ICO has issued guidance which sets out how the ICO proposes to use its new powers. The guidance makes it clear that the power to issue monetary penalties applies to all data controllers, irrespective of whether they are in the private or the public sector (with the exception of the Crown Estate Commissioners and certain limited bodies set out in section 63 (3) of the DPA including, for example, the Keeper of the Privy Purse). This means that everyone, from Government Departments to charities to large corporations, needs to step up compliance with the DPA. It also seems to indicate that some of the high profile losses of compact discs and lap tops containing personal data which have occurred in the last year or so would have resulted in high profile fines had the new legislative framework been in place.



The ICO has the right to impose a monetary penalty notice where the following 3 elements are satisfied:



1. The data controller has seriously contravened the data protection principles (set out in Schedule 1 of the DPA)



The first point to make is that the monetary penalty will only be applied in the most serious circumstances - for example, where a data controller deliberately or negligently disregards the DPA. However, the guidance makes it clear that a single breach might be sufficient to constitute a serious contravention and gives the example of the failure by a data controller to take adequate security measures, such as the use of encrypted files and devices etc resulting in the loss of a compact disc holding personal data.



2. The breach was likely to cause substantial damage OR substantial distress.



Damage would include any actual loss suffered by an individual and the guidance gives the example of an individual becoming the victim of identity fraud as a result of the loss of financial data. In the alternative, it is sufficient for the individual to have suffered distress - i.e. the individual does not suffer any actual harm but, as a result of the loss of data, the individual suffers worry and anxiety.



3. The breach was either deliberate OR the breach was negligent and the organisation failed to take reasonable steps to prevent
it.



A deliberate breach is straightforward and the guidance gives the example of a marketing company which collects personal data supposedly for the purposes of a competition but in fact discloses that data to a tracing database for commercial purposes.


In circumstances where the breach occurred as a result of the organisation’s negligence, the ICO will consider whether the data controller was aware, or should have been aware, of a risk that a breach would occur. The guidance goes on to consider the sort of reasonable steps the data controller should have taken. This includes, for example, the data controller having good governance arrangements in place to establish clear lines of responsibility for preventing contraventions. It is worth reading the guidance to take account of the sort of steps the ICO expects organisations to take to ensure that personal data is held in accordance with the data protection principles. This section of the guidance sets out the sort of good housekeeping measures the ICO expects organisations to have in place.


Assessment of the Penalty



The value of the penalty will be assessed on a case by case basis by the ICO. When publishing the guidance, the ICO commented that it would take the organisation’s financial resources, sector and size into account when assessing what monetary penalty would be appropriate. It would also take the nature and the effect of the breach into account.



The ICO gives the first indication in the guidance that it fully intends to use the new powers when it says that it will issue further guidance on the value of fines that will be levied once actual cases have presented themselves. The ICO also indicates that it is more likely to issue a monetary penalty where a particular category of breach is prevalent amongst data controllers, in order to set an example.



The guidance goes into more detail about the sort of mitigating and aggravating factors that the ICO will take into account. For example, if a large number of individuals are actually or potentially affected, or if the data controller carried out a deliberate or premeditated breach, a monetary penalty will be more likely. By contrast, a monetary penalty is less likely where the breach was caused by circumstances outside the data controller’s control and where the data controller had done all it reasonably could to comply with the DPA.



To access the full guidance, please see the following link:
 



Best Practice



The key message to take away is that now is a good time to ensure that compliance with the DPA is an integral part of your business operations (if you do not do so already). Don’t forget that the ICO will have to regard the way in which an offending organisation has handled its obligations under the DPA when deciding whether or not to levy a fine and the value of the fine itself. Therefore, it is not enough to pay lip service to your obligations under the DPA, and you should be ensuring that you have the processes and policies in place to make sure that your organisation and its staff comply with the DPA when carrying out business.


If your organisation routinely uses third party processors to handle personal information, it is important that not only do you select a reputable company, but that you enter into an appropriate data processing agreement and actively audit and manage the way in which data is handled during the life of the arrangement. This will assist your case in the event that your data processor commits a breach of the DPA which you could not have known about or prevented.

]]> http://www.advoc.com/view-news/Significant+Changes+on+Director'E2'80'99s+Proxy+and+Circular+Board+Resolution/ http://www.advoc.com/view-news/Significant+Changes+on+Director'E2'80'99s+Proxy+and+Circular+Board+Resolution/ Fri, 04 Feb 2011 14:23:15 +0000 This article provides brief information and current practice on the board of Directors meeting of a limited company under the Thai Civil and Commercial Code (“CCC”), specifically on the Director’s proxy and the circular board resolution. Previously, the Department of Business Development (“DBD”), a government agency responsible for the registration of partnerships and companies, accepted the concept of Director’s proxy and the circular board resolutio[...]]]> This article provides brief information and current practice on the board of Directors meeting of a limited company under the Thai Civil and Commercial Code (“CCC”), specifically on the Director’s proxy and the circular board resolution. Previously, the Department of Business Development (“DBD”), a government agency responsible for the registration of partnerships and companies, accepted the concept of Director’s proxy and the circular board resolution until September 2008, DBD issued its ruling (“Ruling”) which had a significant legal implication on Director’s proxy and the circular board resolution as follows:


1. Director’s Proxy
The DBD clearly ruled out that a limited company can not stipulate the provision which allows the company’s Director to authorise other persons to attend and vote in the board of Directors meeting in its Articles of Association (“AOA”). The proxy of this director is disregarded for counting a quorum of the meeting. This Ruling is made in line with the Supreme Court’s Decision that the qualifications of a Director are an exclusive matter and a Director can not authorise another person to act on his behalf for matters exclusively reserved for a company’s Director.



2. Circular Board Resolution
The Ruling also mentioned that any circular board resolution without the actual meeting being convened is not considered as a valid resolution and such a provision can not be fixed in the AOA. Pursuant to the DBD’s interpretation, the circular board resolution provision circumvents the procedure and requirement on the board of Directors meeting prescribed under the CCC, which requires the in-person meeting only.



3. Effect of Ruling
For the existing AOA, the DBD considers that the provision on Director’s proxy and circular board resolution stipulated in such AOA shall be impractical. Furthermore, the DBD will reject a new AOA containing those provisions and request the AOA to be amended in accordance with the Ruling.



4. Tele / Video Conference
Currently, there is no provision under the CCC on the Tele / Video Conference for the board of Directors meetings. Nonetheless, in August 2009 the cabinets agreed in principle to approve the Bill on CCC Amendment, which will relax the requirement of the board of Director meeting by allowing the Director to hold the meeting communicated via technology, such as teleconference and videoconference.

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